Cohabitation

AuthorJeffrey Lehman, Shirelle Phelps

Page 474

A living arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage.

Couples cohabit, rather than marry, for a variety of reasons. They may want to test their compatibility before they commit to a legal union. They may want to maintain their single status for financial reasons. In some cases, such as those involving gay or lesbian couples, or individuals already married to another person, the law does not allow them to marry. In other cases, the partners may feel that marriage is unnecessary. Whatever the reasons, between 1970 and 1990, the number of couples living together outside of marriage quadrupled, from 523,000 to nearly 3 million. These couples face some of the same legal issues as married couples, as well as some issues that their married friends need never consider.

In most places, it is legal for unmarried people to live together, although some ZONING laws prohibit more than three unrelated people from inhabiting a house or apartment. A few states still prohibit fornication, or sexual relations between an unmarried man and woman, but such laws are no longer enforced. Even in the early twenty-first century, some states continue to prohibit SODOMY, which includes sexual relations between people of the same sex. Although these laws are rarely enforced, the U. S. Supreme Court upheld the constitutionality of these sodomy statutes as applied to same-sex couples in Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986). The Court reconsidered the same issue 17 years later, however, and decided that a Texas sodomy law that applied specifically to homosexual conduct violated the DUE PROCESS CLAUSE of the FOURTEENTH AMENDMENT (LAWRENCE V. TEXAS, 539 U.S. ___, 123 S. Ct. 2472,156 L. Ed. 2d 508 [2003]). Advocates of GAY AND LESBIAN RIGHTS viewed the case as a victory for their cause.

The law traditionally has been biased in favor of marriage. Public policy supports marriage as necessary to the stability of the family, the basic societal unit. To preserve and encourage marriage, the law reserves many rights and privileges to married persons. Cohabitation carries none of those rights and privileges. It has been said that cohabitation has all of the headaches of marriage without any of the benefits. Cohabiting couples have little guidance as to their legal rights in such areas as property ownership, responsibility for debts, custody, access to HEALTH CARE and other benefits, and survivorship.

FAMILY LAW experts advise cohabiting couples to address these and other issues in a written cohabitation agreement, similar to a PREMARITAL AGREEMENT. The contract should outline how the couple will divide expenses and own property, whether they will maintain joint or separate bank accounts, and how their assets will be distributed if one partner dies or leaves the relationship. Property acquired during cohabitation, such as real estate, home furnishings, antiques, artwork, china, silver, tools, and sports equipment, may be contested if partners separate or if one of them dies. To avoid this, the agreement should clearly outline who is entitled to what.

When cohabiting couples separate, division of assets often becomes a contentious issue. In the past, courts refused to enforce agreements between unmarried couples to share income or assets, holding that such agreements were against public policy. In 1976, the California Supreme Court decided Marvin v. Marvin, 18 Cal. 3d 660, 134 Cal. Rptr. 815, 557 P.2d 106, holding that agreements between cohabiting...

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