When a couple ends a lengthy period of cohabitation, an issue often arises about the division of property acquired by the parties during the cohabitation. If the property division cannot be resolved by the agreement of the parties, a lawsuit usually follows. In some states the division of property can be resolved using the state’s dissolution of marriage law because the state recognizes a lengthy period of cohabitation as a common law marriage. Illinois in not one of those states, as the recent case of Costa v. Oliven makes clear.
In Costa, the parties lived together for 24 years but were never married. During their cohabitation, Oliven gave birth to a daughter. After his daughter’s birth, Costa assumed the duties of a stay-at-home dad, undertaking all domestic responsibilities. When the relationship broke down, Costa filed a three count complaint against Oliven seeking to obtain his interest in the property the parties acquired during their cohabitation based upon his various contributions to the household, including his child-rearing and domestic duties.
In upholding the dismissal of Costa’s complaint, the court noted the Illinois Marriage and Dissolution of Marriage Act specifically prohibits common law marriages. Thus, there is a public policy in Illinois prohibiting recognition of property rights of cohabitants. Moreover, the Illinois Supreme Court has stated:
The issue of unmarried cohabitants’ mutual property rights cannot appropriately be characterized solely in terms of contract law, nor is it limited to considerations of equity or fairness as between the parties to such relationships. There are major public policy questions involved in determining whether, under what circumstances, and to what extent it is desirable to accord some type of legal status to claims arising from such relationships. Of substantially greater importance than the rights of the immediate parties is the impact of such recognition upon our society and the institution of marriage.
Thus, the court stated, claims like those asserted by Costa are unenforceable because “they contravene the public policy, implicit in the statutory scheme of the Illinois Marriage and Dissolution of Marriage Act, disfavoring the grant of mutually enforceable property rights to knowingly unmarried cohabitants."
The court also rejected Costa’s argument that changes in societal norms and attitudes required a change in Illinois law, stating: “these questions are appropriately within the province of the legislature, and if there is to be a change in the law of this State on this matter, it is for the legislature and not the courts to bring about that change.”
Given the ruling in Costa, cohabitating couples in Illinois are well-advised to seek the advice of counsel in order to protect their rights in property acquired during the cohabitation, especially if one of the parties is undertaking the child-rearing and domestic responsibilities. A written cohabitation agreement setting forth the parties’ agreement regarding the division of property is a prerequisite to avoiding a property dispute. Please do not hesitate to contact us if you need advice on these issues.