Representing unmarried couples: The need for Illinois legislative action

Legislative change is required to ensure the legal rights of unmarried couples are protected in Illinois. This was the conclusion reached by a panel of distinguished speakers at the December 6th ISBA Midyear Meeting program, “Legal Implications of Effective Representation of Unmarried Couples.” Presented by the ISBA Standing Committees on Women and the Law, Minority and Women Participation, Sexual Orientation and Gender Identity, Human Rights and the Task Force on Diversity, the program addressed legal challenges faced by Illinois attorneys in representing unmarried couples.

The ISBA Assembly voted in June to support the concept of rights for unmarried couples as expressed in the proposed Illinois Religious Freedom Protection and Civil Unions Act (HB 1826). Other states have legalized civil unions and extended rights to unwed couples including California, Hawaii, Maine and New Jersey. In opening the program, ISBA President Joe Bisceglia noted that “such issues, regarding the rights and obligations of couples in committed relationships are significant and growing. There’s a lack of clarity in the law which poses significant problems regarding them.”

As the first speaker, Cook County Associate Judge Nancy Katz observed that there are at least 1,138 federal rights and responsibilities accorded to couples based upon marital status. These rights address a range of areas including social security, veteran benefits, taxation and employment benefits to name a few. She also noted that numerous other rights and responsibilities are conferred upon married couples by state law.

Retired Circuit Court Judge Edward Duncan, Wheaton, and Naperville attorney Ronald Broida discussed a recent Illinois case, Costa v. Oliver, where state courts concluded no property rights existed since the man and women living together, as husband and wife, for 25 years were not legally married. In moderating this discussion, Chicago attorney Richard Wilson observed that “Illinois has a bruising case law history of refusing to recognize agreements between unmarried couples.” He further noted that the central issue isn’t about whether a couple is gay, lesbian or straight, but whether they’re married.

Chicago attorney Andrea Schleifer reviewed domestic partnership registries available in some jurisdictions including Cook County. While this recognition accords some legal rights and responsibilities, some unmarried couples enter into partnership or co-habitation agreements, particularly as it relates to raising children together. Ms. Schleifer has drafted many agreements for couples who wanted to live together and has seen these agreements become more comprehensive over time to address the sharing of rights, responsibilities and income. Edwardsville attorney Jennifer Shaw observed that while such agreements may provide the court some guidance as to what these parties intended when they formed their partnership agreement, the big question remains whether partnership or co-habitation agreements are enforceable in Illinois.

State Representative Gregory Harris, the lead sponsor of HB 1826, said the proposed legislation simply represents today’s reality. At the program, he said, “myself and colleagues who support this bill are trying to make Illinois public policy more consonant with evolving realities of same-sex and opposite-sex partners, including seniors who may not wish to enter into marriage for a variety of reasons.” Chicago attorney James Madigan, Lambda Legal Defense, discussed legal recognition of domestic partnerships in other states and the need for such legislation in Illinois. Chicago attorney Colleen Connell, American Civil Liberties Union, observed that this area of the law has been the exclusive province of the states for 200 years and that the federal government is simply not in the business of defining marriage. Her comments reinforced the need for state legislative change as proposed in HB 1826.

HB 1826 would recognize civil unions in Illinois and provide important legal rights and responsibilities to unmarried couples, now excluded from the Illinois Marriage and Dissolution of Marriage Act. HB 1826 would provide equal protection under the law for same-sex and opposite-sex couples in committed relationships and further safeguard the interests of children of these unions. Illinois joins Georgia and Louisiana as the only jurisdictions that refuse to recognize any property rights for unmarried cohabitating partners. In Illinois, it is time for a change—legislative action is needed to overcome the inequality under the law now faced by unmarried couples in this state.
For more information about this important legal issue, see Answering the Call of Our Changing Society: The Illinois Religious Freedom and Civil Unions Act (House Bill 1826) (ISBA The Catalyst, Vol. 13, No. 1, November 2007) by Annemarie E. Kill, Avery Camerlingo Kill, LLC; Status of Unmarried Couples Explored By Seminar Panel (ISBA Bar News and Illinois Court Bulletin, January 2008) by Jeff Cappel; also see Equality Illinois—Why Yes on HB 1826—available at www.eqil.org.
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E. Lynn Grayson is a Partner at Jenner & Block in Chicago. She is the Chair of the ISBA Task Force on Diversity and the Vice Chair of the ISBA Women and the Law Committee.