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Do I Need A Cohabitation Agreement?

The historic case of Michelle Marvin v. Lee Marvin, 134 Cal.Rptr. 815, 557 P.2d 106 (1976), commonly referred to as the “Palimony case,” first brought to the world’s attention the rights, or lack thereof, of a cohabiting couple. In the Marvin case, Michelle Marvin filed suit against actor Lee Marvin seeking to recover her alleged contributions toward his career. Although they never married and did not enter into any type of written agreement stating that their earnings and accumulation of property would be shared or that Lee would provide any financial assistance to Michelle, Michelle claimed she was entitled to an equal ownership interest in all of the property Lee had acquired during their six year relationship. She also sought support from Lee in the nature of alimony.

Michelle alleged that she and Lee “entered into an oral agreement that while the parties lived together they would combine their efforts and earnings and would share equally any and all property accumulated as a result of their efforts whether individual or combined.” Michelle further alleged that she and Lee also orally agreed to “‘hold themselves out to the general public as husband and wife,’ and that she ‘would further render her services as a companion, homemaker, housekeeper and cook.’” The trial court granted Lee’s Motion to Dismiss, and Michelle appealed. The California Supreme Court reversed, holding that Michelle’s complaint stated a cause of action. At this point, Michelle had the opportunity of proving her case in court.

Prior to Marvin, the California Supreme Court had issued a number of opinions addressing the financial issues of cohabiting couples. However, the Marvin court described these cases as exhibiting a “schizophrenic inconsistency” and indicated it intended to clear the record as to the rights of cohabitants. It proceeded to review a number of the cases preceding Marvin and concluded that:

“(1) The provisions of the Family Law Act does not govern the distribution of property acquired during a nonmarital relationship; such a relationship remains subject solely to judicial decision. (2) The courts should enforce express contracts between nonmarital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services. (3) In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties. The courts may also employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting trusts, when warranted by the facts of the case.” [Emphasis supplied.]

Therefore, what this means is that absent a written agreement, the rights of cohabitants must be determined by a court of law, and if a court does not conclude that a type of partnership agreement existed between the cohabitants, they have no rights.

Courts, noting that issues of division of property and payment of debts and support were governed by state marriage laws, generally held that cohabiting couples had no rights under such laws since they only applied to married couples. Thus, absent a written agreement spelling out the rights sought to be enforced, cohabitants were denied any relief often resulting in grave misjustice.

As the population of unmarried cohabitants began to proliferate and their relationships lasted longer, courts in many states came to realize the need to be more creative in protecting the rights of cohabitants. This is especially true since legislatures largely ignored this politically charged issue, leaving it to the courts to fashion relief within the boundaries of the law. Some courts, in an effort to provide some justice to cohabitants, especially in lengthy relationships, decided that such relationships are akin to a partnership. Thus, if elements of a partnership can be found in the particular facts of a relationship, courts could apply partnership law to determine each partner’s rights. In this way, some protection could be afforded to unmarried cohabitants thereby avoiding the potential injustice to one of the parties. But there is the rub – establishing facts to support a court’s conclusion that a partnership existed which permits it to divide the assets derived from the relationship is a heavy task that more often fails than succeeds.

Since cohabitants are not afforded any rights or benefits under most state family law provisions and until legislation is adopted protecting the rights of cohabitants, a written cohabitation agreement certainly makes sense. Absent an agreement, there is no predictability as to the rights of each party in litigation following the split of an unmarried relationship. The parties are thus left to the whim of the court in its effort to do justice.

So, do I need a Cohabitation Agreement? It certainly would ease the burden should the cohabitation come to an end.

Article Written By: Peter Economidis

Family Law/Mediation

  1. Marvin v. Id., 134 Cal.Rptr. 815, 557 P.2d 106 at 110 (1976)
  2.  Marvin v. Id., 557 P.2d 106 at 110
  3. Having joint checking account and savings accounts in which the parties pool their funds; jointly paying their living and other expenses; jointly purchasing items. For example, see Cook v. Cook, 142 Ariz. 573, 693 P.2d 664 and Carroll v. Lee, 148 Ariz. 10, 712 P.2d 923 (1986)