A Feminist Proposal to Bring Back Common Law Marriage

Abstract

The dilemma of the "wife" in an informal marriage is reflected in the Illinois Supreme Court's well-known opinion in Hewitt v. Hewitt. Like Audrey, Victoria Hewitt had lived with Robert Hewitt for fifteen years in a union distinguished from marriage only by the absence of a license and ceremony. The Hewitts, who had three children, lived a traditional middle class life; Victoria was a homemaker, but entertained and supported Robert's professional advancement in a variety of ways. When the Hewitts decided to part, however, Victoria's initial petition for divorce was dismissed on the ground that no marriage existed? She brought an amended petition seeking to recover a share of the property accumulated by the couple during the fifteen years they were together based on an implied contract theory, which was also dismissed. The Illinois Supreme Court affirmed the dismissal of Victoria's claim, stating that to recognize her rights would in effect bring back common law marriage, an institution outlawed by the Illinois legislature in 1905, a conclusion that left Victoria Hewitt without any rights to the couple's jointly acquired property. Similarly, in our case, Audrey could allege no support or property rights under Illinois law, although she would clearly have qualified as a common law wife prior to 1905.

From this beginning, I became curious about the history of common law marriage, its abolition, and the impact upon women of failure to recognize the doctrine. Indeed, the most prelimi­nary research showed that, with very few exceptions, the cases arguing for the recognition of common law marriages were all brought by women-a circumstance of note for a legal doctrine that is formally gender neutral. From my colleagues I began to learn, moreover, of other women among our clinic clientele­ mostly poor, many women of color-who had been harmed by Illinois's failure to recognize common law marriage: a common law "widow" unable to collect Social Security survivors' benefits after a relationship of very long standing and thus forced to rely upon public benefits providing much less income, another unable to collect damages for a wrongful death action, and the like. A colleague with experience at the Legal Assistance Foundation in­ formed me that it was common-almost universal-for women coming into neighborhood legal aid offices to believe that if they lived with someone for seven years, they were legally married to that person.6 All of this information reinforced my initial hunch that the institution of common law marriage had benefitted women-protected their welfare when they were vulnerable (widowed, abandoned), protected their reliance upon and investment in long-term relationships of trust, and recognized their contributions of labor and commitment that were not embodied in money, property, or title. I hypothesized that abolition of the doctrine had harmed women as a class.

Keywords: Common law marriage, Cohabitation, Unmarried couples