Running head: ON FAMILY LAW AND COHABITATION

On Family Law and Cohabitation

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ON FAMILY LAW AND COHABITATION
On Family Law and Cohabitation

Marvin v Marvin (1976) was a landmark case which laid down a fresh perspective on the

property rights of partners engaged in a non-marital live-in relationship or ‘cohabitating’ on the

dissolution of the relationship. As per the facts of the case, the plaintiff and the defendant had

lived together without marriage for seven years and had entered into an oral agreement to pool

their efforts and earnings together and to distribute property acquired during the tenure of the

relationship, equally between them. The plaintiff accordingly had given up a promising

entertainment career to provide housekeeping and homemaking services and companionship for

the defendant on the understanding that he would support the plaintiff financially and the

defendant had accumulated considerable property all in his name in the course of the

cohabitation period. Thus, when the defendant compelled the plaintiff to leave his household in

May 1970 and summarily stopped providing support after November 1971, the plaintiff brought

suit against the defendant claiming entitlement to half the property accumulated and support

payments. The trial court found for the defendant and the plaintiff appealed to the higher court

for redressal. The Supreme Court of California after hearing counsel arguments reversed the trial

court’s decision and remanded the case for further proceedings.

In the California Supreme Court’s majority opinion, the court invalidated the defendant’s

pleadings holding that a contract between non married partners is unenforceable only when the

said relationship is based only on meretricious sexual services, as it was not the case here thereby

rendering the oral agreement enforceable within law. The court also held that the enforcement of

the agreement will not violate public policy as any property distribution to the plaintiff will not

impair any right of the defendant’s divorced lawful wife. The court refused to consider the plea

that marriage settlements need to be in writing as per Civil Code on the grounds that a marriage
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ON FAMILY LAW AND COHABITATION
settlement is a settlement in contemplation of marriage whereas the defendant’s relationship with

the plaintiff was non-marital. The court also dismissed the defendant’s argument that no action

against breach of promise of marriage under Civil Code section 43.5 holding that “numerous

cases have enforced pooling agreements between non-marital partners, and in none did court or

counsel refer to section 43.5.” since the enactment of the said civil Code section in 1939. ( Justia,

2018). Thus the Supreme Court of California held that the oral agreement was tantamount to an

enforceable contract between both the unmarried partners as it represented an express contract

between the parties and further advised courts to look into implied contracts between non-marital

partners which can also arise in such situations where an express contract may be absent, from

the conduct of the cohabitating partners involved, in deciding property distribution between

partners on dissolution of the relationship. (Marvin v Marvin, 18 Cal. 3d 660)

Thus, Marvin v Marvin laid down an important yardstick in Family Law firstly by

distinguishing agreements, expressed or implied, arising from cohabitating relationships as ‘non-

enforceable’ where the relationship consists of solely providing meretricious sexual services as a

consideration of one party, and ‘enforceable’ where the consideration involves other services too

such as homemaking, housekeeping, companionship, etc. The case also brought into vogue the

concepts of express and implied contracts that may exist between cohabitating couples which

may arise from how unmarried cohabitants conduct their relationship, and that “a variety of

equitable remedies might be available to cohabitants to enforce "tacit" understandings as to their

respective rights to property upon termination of their relationship.” (Berenson, 2011, p.296)

Thus as per the Marvin doctrine, the law tends to treat cohabitation between unmarried partners

as more or less equivalent to marriage and many of the legal perquisites that are available to

married partners are also made available to couples involved in non-marital relationships.
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However, jurisdictions differ from state to state and there are many states which exhibit a harsher

approach in resolving legal disputes arising between cohabitating couples than in the case of

married partners. An example of the verdict of Hewitt v. Hewitt (1979) of the Supreme Court of

Illinois can be cited in this regard.

Victoria and Paul Hewitt had lived together for fifteen years without being married and

had three children from their relationship, behaving as a married couple to the world. Victoria

had borrowed money from her parents to start Paul’s eventfully successful business wherein she

had worked as an employee. During the relationship, Paul had managed to accumulate

considerable properties both individually as well as jointly owned. On the dissolution of the

relationship, Victoria filed suit against Paul for enforcing his promise made to her at the

beginning of their relationship “to share his life, his future, his earnings, and his property with

her.” (Berenson, 2011) Though the appellate court found for Victoria as per the Marvin doctrine,

the Supreme Court of Illinois however held that “the plaintiff's claims are unenforceable for the

reason that 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,” (Justia, 2018) and reversed the appellate

court’s decision. Thus it appears that there is no universal standard for legal dispute redressals of

couples engaged in a cohabitate relationship and the same is subject to case law and its

interpretations, which can vary widely from state to state, depending on Family Law principles

established therein. There appears to be still lots of gray areas as per laws relating to cohabitation

and the redressal of legal disputes between partners in such relationships. As per Bernstein,

“contract, partnership and family law apply to parts of the arrangement, but there is no

consolidated body of law, nor is there likely to be, such as a family code governing
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ON FAMILY LAW AND COHABITATION
cohabitation.” (1977, p.366) Thus it makes sense that family counsellors, in case of clients who

either plan to or are in such a relationship, should explore or at least make the client aware of

possible future and legal perils with children, custody, property distribution, palimony, etc.

which holds potential for trauma and unnecessary expenses arising from protracted, legal battles.

Under Arizona Family law, the earnings of both spouses in a marriage is community

property and the same is divided equitably between both spouses if they divorce. However, if the

subject couple is unmarried and cohabitating, then the community property protection rules do

not apply and it is left to the courts to decide whether equitable distribution of property between

the cohabitating partners is permissible under law. In Cook v Cook, 691 P.2d 664 (1984), an

unmarried cohabitating couple had made an property agreement and on the dissolution of the

relationship in 1981, Ms. Cook brought suit against her erstwhile partner seeking half of their

assets acquired during the period of cohabitation, and both the trial court and the appeals court

ruled against her. The Arizona Supreme Court however ruled that though state laws do not give

unmarried cohabitating couples community property rights of their assets when they separate,

here Ms. Cook was not claiming community property rights and wanted the court to enforce a

contract for pooling of income and consequent ownership of assets. The Supreme Court thus

held that the contract can still stand as a valid independent contract and its enforcement therefore

does not flout state public policy. As the trial court had never examined whether a contract

existed between the parties, the Supreme Court sent the case back to the trial court asking it to

apply the opinion of the court in the same.(Hildebrand, 2016). Therefore, it can be seem that in

Arizona too, like other states, the redressal of legal disputes between cohabitating couples

ultimately depends upon case law and the facts of the case, there being no universal doctrine of

law which is applicable in such cases.

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ON FAMILY LAW AND COHABITATION
In conclusion, it appears to be proper to say that though the legal rights of cohabitating

couples are being increasingly given more standing by courts, it still makes sense for individuals

in such relationships to make written cohabitation agreements to spare themselves from trauma

and expenses in legal disputes which may arise if and when the relationship breaks down.

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ON FAMILY LAW AND COHABITATION
References

Berenson, S.K.(2011) Should Cohabitation Matter in Family Law? Journal of Law & Family

Studies, Vol 13, pp. 289-328. Retrieved from https://kapextmediassl-

a.akamaihd.net/legal/LS508/LS508_1405C/Unit2_Should_Cohabitation_Matter_in_Fami

ly_Law.pdf

Bernstein, B. (1977). Legal Problems of Cohabitation. The Family Coordinator, 26(4), 361-366.

doi:10.2307/581757

Hildebrand, C. (2016, July 6) Cohabitation Agreements in Arizona Retrieved from

https://www.hildebrandlaw.com/cohabitation-agreements-in-arizona/

Justia U.S. Law (2018) Hewitt v. Hewitt 77 Ill. 2d 49 (1979). Retrieved from

https://law.justia.com/cases/illinois/supreme-court/1979/51264-6.html

Justia U.S. Law (2018). Marvin v. Marvin. Retrieved from

https://law.justia.com/cases/california/supreme-court/3d/18/660.html

Marvin v. Marvin 18 Cal. 3d 660, 557 P.2d 106, 134 Cal. Rptr. 815 (1976)