§ 2.07 UNMARRIED AND UNREGISTERED COHABITANTS—EQUITABLE DIVISION

• Jurisdiction: Washington

§ 2.07 UNMARRIED AND UNREGISTERED COHABITANTS—EQUITABLE DIVISION

A lawful marriage or valid registered domestic partnership is a prerequisite to the existence of community property. The requirement is inherent in the statutory definition. Any determination of property rights arising during cohabitation without marriage or registered domestic partnership must depend upon principles other than those of community property. Hynes v. Hynes, 28 Wn.2d 660, 184 P.2d 68 (1947). See also In re Estate of Sloan, 50 Wash. 86, 90, 96 P. 684 (1908), in which the court stated:

[T]he proofs in the record amply show that the appellant and Mary Steves were never lawfully married, and that the property involved in this action is not community property. If the respondents have any interest in the property as children or grandchildren of Mary Steves, deceased, the burden is upon them to establish that fact, as it does not arise out of any marriage relation.

Washington courts have made an equitable division of property of an unmarried couple when one or both parties mistakenly believe they are married (see § 2.07[1]-[3], below), and when parties cohabit in a committed intimate relationship knowing there is no valid marriage (see § 2.07[4]-[7], below).

[1] Rights in Property Acquired in Innocent Spouse Situations

When one or both parties believed a lawful marriage existed, some jurisdictions have employed a putative marriage theory in an "innocent spouse" situation, treating the innocent party as if that party actually was the lawful marital partner of the other. In contrast, Washington courts have protected innocent spouses under inherent equity power, evolving a doctrine of equitable division of property without recourse to the divorce statutes. Himes v. MacIntyre-Himes (In re Himes), 136 Wn.2d 707, 965 P.2d 1087 (1998); Poole v. Schrichte, 39 Wn.2d 558, 236 P.2d 1044 (1951); Knoll v. Knoll, 104 Wash. 110, 176 P. 22 (1918); see also In re Relationship of Eggers, 30 Wn. App. 867, 638 P.2d 1267 (1982).

The distinction between innocent relationships and relationships in which the parties knew they were not married may have limited continued usefulness. Prior to the development of the committed intimate relationship doctrine, see § 2.07[4], below, the Washington Supreme Court prohibited equitable division of property when the parties knew they were unmarried, except in certain exceptional circumstances. Creasman v. Boyle, 31 Wn.2d 345, 196 P.2d 835 (1948), overruled by In re Marriage of Lindsey, 101 Wn.2d 299, 678 P.2d 328 (1984). A finding of an innocent mistake regarding marital status was therefore necessary to grant equitable relief and property rights to the innocent spouse. Now that property rights can be granted even when both parties know there is no marital relationship, the innocent spouse theory of recovery may be unnecessary. See § 2.07[4], below.

One scenario in which the innocent spouse theory may continue to be helpful, however, is when there is a valid spouse in addition to the "innocent spouse" and the party in the middle. In some cases, the first spouse may not be able to claim a community interest in the property acquired during the relationship with the innocent spouse because the undissolved and legally valid marriage was defunct by that time. See RCW 26.16.140. However, in instances in which the first, valid marriage is not defunct, the innocent spouse may not be able to establish a valid committed intimate relationship and may therefore need to assert a right to relief under the innocent spouse theory. See, e.g., Seizer v. Sessions, 132 Wn.2d 642, 940 P.2d 261 (1997); see also In re Marriage of Pennington, 142 Wn.2d 592, 14 P.3d 764 (2000). Whether the equitable power recognized in the innocent spouse cases is meaningfully different from that more recently developed in the committed intimate relationship cases, however, remains to be seen.

[2] Voluntary Termination of Innocent Spouse Relationship

The location of legal title does not prevent an equitable distribution of property acquired by joint effort during an innocent spouse relationship. Powers v. Powers, 117 Wash. 248, 200 P. 1080 (1921); Buckley v. Buckley, 50 Wash. 213, 96 P. 1079 (1908). No court hearing an innocent spouse case has purported to award property not acquired by joint effort during the relationship. However, in the more recent committed intimate relationship decisions, courts have awarded property acquired by one party to the other party based solely on the relationship and the mode of acquisition, and those cases may apply in a more current innocent spouse case.

If both parties are innocent, the most reasonable prediction is that a court will hold that each is entitled to one-half of the property acquired by their joint efforts. However, if there is only one innocent party, the court will first allow that party an equitable share and will then award the balance to the knowing party. It is doubtful that any court will leave a knowing party with nothing. Buckley, 50 Wash. 213. In Buckley, those claiming an interest in the property standing in Buckley's name were Buckley's former wife and an "innocent spouse." In awarding half to Buckley and a quarter each to his former wife and the innocent party, the court stated:

Bearing in mind that appellant Buckley accumulated this property, and that he is now sixty-six years old, in feeble health, requiring support, medical attendance, and nursing, we cannot say that the disposition of the property, as made by the trial court, was erroneous, inequitable, or unjust.

Id. at 223.

The courts have also applied partnership principles in dividing property upon the voluntary termination of innocent spouse relationships. Partnership principles do not mandate an equal division. See Knoll, 104 Wash. 110.

In Poole v. Schrichte, 39 Wn.2d 558, the court did not follow a partnership concept of distribution, but made an equitable distribution that was equal. The court did warn future litigants that they could not necessarily expect an equal distribution in all cases.

BUCKLEY V. BUCKLEY, 50 Wash. 213, 96 P. 1079 (1908). Andrew and Mary Buckley purported to enter into a common-law marriage in Minnesota. At the time, Andrew had a wife of whom Mary had no knowledge and from whom Andrew had never obtained a divorce. His first wife later secured a divorce in Illinois. In litigation in which all three asserted rights in property, the court awarded Mary and Andrew's former wife each one-fourth of his property despite Andrew's contention that Mary should receive nothing because she never became his wife. The court awarded Andrew one-half of the property primarily because of his poor health.

KNOLL V. KNOLL, 104 Wash. 110, 176 P. 22 (1918). The original purpose of this action was to secure a divorce. Two months after plaintiff had divorced her first husband, she and the defendant went through a marriage ceremony in Canada and returned to Washington. under Washington law at that time, the marriage was void. Both parties believed their marriage valid. The plaintiff assisted the defendant in the saloon business in Everett and also worked as a seamstress. The property that the couple had accumulated while they lived together was in the defendant's name. The court held that because of the parties' good faith, irrespective of a mistake of fact or law, the relationship was to be treated as a partnership with respect to property acquired by their joint efforts. The court stated: "So long as the parties lived together as husband and wife[,] both labored in their respective fields, and the property acquired during this time was the result of their joint efforts. Id. at 115.

POOLE V. SCHRICHTE, 39 Wn.2d 558, 236 P.2d 1044 (1951). Irene Poole and Hubert Schrichte lived together from 1935 to 1947, during the last six of these years residing in Washington. Irene contended at trial that she in good faith believed they had consummated a valid common-law marriage while the couple resided in Illinois. Her work and business operations had substantially contributed to the acquisition of certain personal property and a tavern, all of which were held in Schrichte's possession or name. The trial court awarded Poole one-half of the personal property and $5,000 in lieu of a one-half interest in the tavern. The Supreme Court held that there was credible evidence to support Irene's belief that a marriage existed. The court made clear that the annulment provisions of the divorce statute were not needed by the court to cope with an "innocent spouse" situation:

[T]he authority and jurisdiction of the court to divide the property accumulated during such a relationship is in consequence of the court's inherent equity power, and not because of the divorce statute. It is likewise our view that the court is not limited, under an equal partnership concept, to an even division of the property accumulated, but that the innocent party may be awarded such proportion of the property accumulated as would under all the circumstances be just and equitable.

Id. at 569. The trial court's award as to the tavern was upheld on the basis that the evidence had established a joint venture and possibly a partnership. The award as to the personal property was upheld on the basis of a good-faith innocent relationship.

[3] Termination of Innocent Spouse Relationship by Death

A property division also is indicated at the death of one of the parties to an "innocent spouse" relationship. Credible supporting evidence must be presented to establish a claim based on such a relationship. The "dead man's statute," RCW 5.60.030, which in some circumstances prohibits interested parties from testifying as to statements of or transactions with a deceased, incapacitated, or minor person, may exclude crucial testimony from the surviving party. See Parks v. Fink, 173 Wn. App. 366, 293 P.3d 1275 (2013). This problem may well underlie the result reached in Creasman v. Boyle, ...