§ 1.02 Disputes Between Cohabitants
| Jurisdiction | United States |
| Publication year | 2021 |
§ 1.02 Disputes Between Cohabitants
[1]—The Traditional View
The doctrine of illegality pervades older cases involving claims between unmarried cohabitants.1 Pursuant to this view, claims relating to the cohabitation were considered tainted by the parties' fornication. Such claims were considered immoral and barred by the doctrine of illegality.2 Even an express written contract between cohabitants regarding their property rights arising from the cohabitation was unenforceable. This rule of illegality evolved because such relationships were considered highly offensive. In addition, some hoped that this harsh rule would encourage cohabitants to marry.
A 1980 Tennessee case is representative. In that case, the court held:
"[a claim based upon a contract between cohabitants] is founded upon illegal consideration. . . . A contract for an immoral purpose [cohabitating without the benefit of marriage] is . . . invalid consideration, . . . contrary to public policy and will not be enforced."3
It is unclear whether, under this view, all claims relating to the cohabitation are barred, including claims based upon equitable theories such as resulting trust, constructive trust, or partnership. At least one case has held that all such claims are barred.4 Most courts treat the illegality doctrine as a bar only to contract claims; rights based upon theories of trust or partnership can exist.5
[2]—Severability
The doctrine of illegality does not bar people who participate in an illegal act from filing any claim in the courts. Such people are only barred from filing a claim relating to the illegal act. In the context of unmarried cohabitation, those states that accept the illegality rule only bar cohabitants from asserting claims relating to the cohabitation.6
It, therefore, is necessary, under this system, to determine what kinds of claims are sufficiently unrelated to the cohabitation to be considered "severable" from the illegal cohabitation. One claim that clearly is severable is one relating to a separate business or investment activity of the couple.7
It is no secret that cohabitation has become much more acceptable.8 Because of this trend, and because the illegality rule can have quite harsh results, many courts not willing to expressly reject the illegality rule have greatly limited it by a creative interpretation of the severability exception. Such courts have considered "severable" almost any claim relating to the cohabitation, so long as sexual relations are not expressly mentioned as consideration.9
[3]—Selective Illegality
Some courts have restricted the types of relationships to which the illegality rule will apply. For example, in a few cases, courts have allowed claims relating to property accumulated during the relationship.10 These cases emphasized, however, that the relationships involved were sufficiently conventional so that community standards were not offended. It was stated, however, that some cohabitation relationships could still be offensive and illegal, thereby rendering any cohabitation agreements unenforceable.11 The characteristics of such offensive relationships remain unclear. The relationships involved in these cases were long, stable, heterosexual and monogamous, and neither party was married to another.12 If a relationship deviates from such a "conventional" cohabitation situation, the doctrine of illegality might still be strictly applied by these courts.
The illegality of cohabitation under the forum's criminal laws does not seem to affect this analysis. For example, lewd and lascivious cohabitation violated the criminal laws of Michigan and Wisconsin when two cohabitation claims arose.13 Yet the claims between the cohabitants were allowed by both the Michigan14 and Wisconsin15 courts.
In many cohabitation situations, at least one cohabitant is married to a third party. Courts have not considered this situation sufficiently unconventional so that the rule of illegality applies.16 Indeed, even when the cohabitant continued to "date" the spouse, it has not caused the courts to consider the cohabitation immoral and illegal.17 The effect of such a cohabitation award upon the property rights of the spouse not cohabiting has not been considered.18
"Unconventional" heterosexual relationships that have been involved in cohabitation cases include a man who cohabited with two women and still dated his wife,19 and a "communal marriage" comprised of two men and one woman.20 The illegality rule was not applied in either case.
Claims relating to same-sex cohabitants have also reached appellate courts. These courts generally have applied the rules governing heterosexual cohabitation to such claims.21 However, one court seemed to apply these rules in a less than even-handed manner to invalidate an agreement between homosexuals.22
A Colorado court held that a claim arising out of a cohabitation relationship should not be barred for illegality if the sexual relationship was secondary to any agreement and not the sole consideration.23 A California court has suggested that only claims arising from prostitution should be barred due to illegality.24 As the above discussion suggests, the vitality of the illegality rule is in flux, and will vary from state to state.25
[4]—The Rejection of the Illegality Rule
Marvin v. Marvin26 is the most celebrated of the cases that generally reject the application of the illegality rule to cohabitation claims.27 However, Marvin and its progeny have not driven a stake through the heart of the illegality rule by any means. Marvin states:
"Adults who voluntarily live together and engage in sexual relations are nonetheless as competent as any other persons to contract respecting their earnings and property rights. Of course, they cannot lawfully contract to pay for the performance of sexual services. . . . So long as the agreement does not rest upon illicit meretricious consideration, the parties may order their affairs as they choose. . . ."28
The standard set forth in Marvin is less than precise. An agreement "[resting] upon illicit meretricious consideration" is unenforceable. It is unclear how this can be a workable rule, since all cohabitation in this context involves sexual relationships. Those who agree to share accumulated property presumably do so because they are living together and sharing a sexual relationship. Under California law, the agreement apparently may be void only if the parties allude to the sexual relationship in the agreement.29 It is unclear how other states that have adopted Marvin will construe this unlawful meretricious consideration limit.30
[5]—Continued Acceptance of the Illegality Rule in Some States
Many states generally have embraced the Marvin approach to dealing with cohabitant claims when the relationship ends. Shortly after Marvin was decided, the Illinois Supreme Court rejected the Marvin view31 and continued to endorse the illegality rule. Somewhat surprisingly, the Illinois Supreme Court reaffirmed this view in 2016.32 The illegality rule was applied by a Louisiana court in 198333 and a Georgia court in 1994.34
[6]—Theories of Recovery in Cohabitants' Disputes
If a cohabitation claim is not barred by illegality, a number of theories of recovery are possible.35
[a]—Express Contract
The most generally accepted theory of recovery is express contract. An oral or written cohabitation agreement is enforceable in those states that do not apply the illegality rule to all cohabitation claims,36 unless the Statute of Frauds applies,37 or unless unlawful meretricious consideration was given.38 For decades, Texas and Minnesota have accepted the rule that only written contracts between cohabitants are enforceable.39 In 2010, New Jersey enacted a statute providing that, to create an enforceable cohabitation contract, the contract had to be written, and each party must receive advice from counsel.40 The New Jersey Supreme Court has held that this statute does not apply to agreements that predate the statute.41
Normal contract rules apply to the express contract theory.42 For example, the parties must have agreed regarding all material terms of the agreement,43 any claim for a breach of the contract must be brought within the applicable limitations period, and consideration is required.44
In a Florida case, the court applied conventional contract analysis to uphold a liquidated damages provision requiring one party to pay the other monthly payments of $2,500 for the rest of her life.45
A Massachusetts court considered an alleged cohabitation contract to be against public policy when the contract was made to induce the woman to leave her husband.46
A New York case involved a same-sex couple who had children from other relationships. They agreed to live together and adopted the other's child. When the relationship ended, one party alleged that they had orally agreed that (i) one partner would quit her job and take care of the children, while the other continued to work outside the home, and (ii) they would equally share all earnings accumulated while one partner was out of the work force. The appellate court ruled that an oral express agreement between cohabitants could constitute an enforceable claim between cohabitants, as long as illicit sexual relations were not part of the consideration.47
A New York court has enforced a "separation agreement" signed by a lesbian couple when their relationship ended.48
North Dakota courts equitably divide a couple's property accumulated during a cohabitation if it finds written evidence of such an intention to share. Relevant evidence includes how the parties took title to property and whether they have separate or joint bank accounts.49
In an Ohio case, in connection with moving in together, a couple signed a written agreement stating that they were "equal partners" in the house they were to live in (that was owned by the man). The man was to pay all expenses relating to the property. If the...
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