Cohabitation Contracts: What is a non-marital cohabitation agreement & do I need one?

Attorney, John Carella

What is a non-marital cohabitation agreement & do I need one?

Many California couples elect not to get married - but still enter into the same contractual and financial arrangements as married couples.  Unmarried couples may simply not want the level of commitment that marriage implies, but many others form the same level of emotional commitment and intimacy, but simply prefer for various reasons not to get married or have been legally prevented from marrying.  Of interest to these couples who cohabit, that is, live together in a romantic relationship, are the legal problems to be resolved in the event that the couple terminates their relationship.  The sooner that a couple addresses this concern, the better, particularly for the partner who wishes to enforce an agreement for support or property division. 

The California Family Code, and the cases interpreting it, govern the dissolution of marriage process for married couples who separate.  However, despite the increasing frequency of unmarried cohabitation, the law in this area is very sparse.  Unlike "family law" which consists of thousands of statutes and appellate cases, there is not a single statute, and only a handful of cases, relating to non-marital cohabitation.  

The principal case concerning non-marital cohabitation involved  the actor Lee Marvin who was sued by his former cohabitant Michele Marvin (nee Triola) who sought a declaration of her contract and property rights.  (Marvin v. Marvin, 18 Cal. 3d 660,557 P.2d 106,134 Cal. Rptr. 815,1976 Cal.)Lee Marvin

This was the case from which the term “palimony” emerged. The California Supreme Court held that the Family Code did not apply to a non-marital relationship, but that courts should enforce express contracts between non-marital partners and should inquire into the conduct of the parties to determine if it demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding of the parties.

 The problem of course is the matter of proof. Unmarried partners looking to pursue such an action should be aware that the history of success in this regard is not great.

What agreements will a court enforce?

Written agreements between non-marital cohabitants are rare.  However, if the parties want to be clear on their rights and obligations in the event of a split, and avoid expensive litigation in the future, they need to put their agreement in writing.  The way to achieve clarity and enforceability is to enter into a written "non-marital cohabitation agreement."  

What would a non-marital cohabitation agreement look like?

The written non-marital cohabitation agreement can address, among others things, the following issues:

1. The interests of the parties in any real and personal property acquired during the period of cohabitation.

2.  The interests of the parties in any real and personal property which was owned by one party prior to commencement of the relationship.

3. Whether or not one party is obligated to support the other party after termination of the relationship.

4. The responsibility for household expenses  incurred during the relationship.

5. Disposition of joint bank accounts and other assets  in the event of termination of the relationship.

6. Responsibility for debts incurred by one party or both parties during the relationship which remain at the end of the relationship.

7. Custody and visitation of any children of the relationship (the parties can agree on these issues but they cannot limit the authority of a court to modify their agreement nor can they deprive the court of authority to determine child support).

8. Disposition of property in the event of death of one party.

A proper non-marital cohabitation agreement should also include a comprehensive list of the assets and debts of each party, and a disclosure of each party’s income. 

Because the law in this area is still being developed, we recommend that you consult with a legal professional in the preparation of your non-marital cohabitation agreement. Contact us today to learn more about your rights, and what we can do to help. 

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