Cohabitation Worldwide Today
| Publication year | 2019 |
Cohabitation Worldwide Today
Margaret Ryznar
Indiana University McKinney School of Law, mryznar@iupui.edu
Anna Stepien-Sporek
Attorney-at-law, partner at Kancelaria Radców Prawnych I Adwokatów
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Despite the increase in cohabitation around the world, legal responses to it remain limited, particularly in the last several years. Yet, there are universal issues at the end of a cohabitation, particularly related to property division. This article will survey the recent legal developments on the property consequences of cohabitation in both the United States and Poland, drawing on comparative lessons to suggest future developments in this area of law.
Around the world, cohabitation has been on the rise for decades with many millions of couples living together outside of marriage.1
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The United States is no exception: single people recently outnumbered married people for the first time in history.2 Many Americans are cohabitating instead of marrying.3 For example, marital households recently comprised less than half of all households in the United States, while almost 6% of households were opposite-sex, unmarried partners.4 Over 7 million opposite-sex couples cohabitated in 2010,5 a dramatic increase from the 523,000 cohabitating couples in 1970.6 Between 2000 and 2010 alone, there was a 41% increase in unmarried couple households.7 Unthinkable and even criminal for much of history,8 cohabitation has become a transition to marriage or even a substitute for it.9
In Poland, the trend is similar. According to the European Social Survey, cohabitants comprised 4.5% of all unions in 2006, an
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increase from previous years.10 As outlined by Kathleen Kiernan, the official statistics show that cohabitation is still in the first stage of diffusion:11 rare and thus treated as an unusual type of relationship.12 The real data, however, may differ from the official data because some people hide their cohabitation for reasons such as societal disapproval.13 Indeed, the high number of children born outside of marriage suggests that cohabitation is more common.14
Couples choose to cohabitate instead of marry for various reasons, such as insufficient finances,15 avoidance of the cultural and legal implications of marriage,16 or simply the lack of desire to get married.17 Many cohabitations are temporary because cohabitants
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often eventually separate or marry.18 According to one study, only 10% of cohabitants are still cohabitating after five years.19
For some couples, cohabitation is a transitory step or a testing period before marriage. However, the increase in divorces with major financial consequences, especially in Poland, may make people hesitate before formalizing their relationships.20 In other words, the negative consequences associated with divorce may be leading to a decrease in marriage.21
The increase in cohabitation cases has prompted courts to address the legal issues related to cohabitation,22 most of which concern children and the division of property. Although parents are responsible for their children regardless of whether they were ever married,23 property division between cohabitants is more gray.24 This article analyzes the recent legal developments on the property consequences of cohabitation in both the United States and Poland, drawing on comparative lessons to suggest future developments in this area of law.
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I. Cohabitation Developments in the United States
Recently, there have been a few legal developments on cohabitation in the United States, but they are best understood within the context of the greater framework on cohabitation, which emerged in the 1970s through the early cases establishing the two approaches to cohabitation contracts, which are the primary ways to protect cohabitants.
The majority approach is that contracts between cohabitants are enforceable regarding the terms of their separation.25 Scholars have taken this as evidence of the shift from status to contract in family law.26 The minority approach does not recognize such contracts.27
A. Legal Framework on Cohabitation
The law on cohabitation has a very short history in the United States. Outside of common law marriage, cohabitants had few rights until notable case law developed in the 1970s.28 Marvin v. Marvin in California established the majority approach on cohabitation in the United States.29
In Marvin, Michelle and Lee lived together for seven years without getting married, and Michelle took his last name.30 Michelle alleged
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that Lee had promised to support her throughout her life in exchange for her work as a companion, homemaker, housekeeper, and cook.31 She argued that because of this oral agreement, she surrendered her career as an entertainer to devote herself fulltime to the household.32 Michelle asserted that this oral contract should be enforced, entitling her to support payments and to half the property that the couple had acquired during the relationship—including motion picture rights worth more than $1 million—even though the property was all in Lee's name.33
If Michelle had been a wife rather than a cohabitant, she would have enjoyed rights to the property acquired during the marriage under divorce law.34 At the time Michelle brought her lawsuit, public policy aimed to discourage cohabitation by withholding remedies for cohabitants.35
The California trial court in Marvin v. Marvin granted a judgment on the pleadings for Lee, resulting in his receipt of all of the couple's property upon the break-up of the relationship.36 The California Court of Appeals affirmed in Lee's favor.37 The California Supreme Court, however, reversed in favor of Michelle, holding that a contract between unmarried partners should be enforced except to the extent that it explicitly rests on the consideration of meretricious sexual services.38
It has long been public policy in the United States to disallow payment for sexual services, but in Marvin, the California Supreme Court made the distinction between contracts based on domestic services and those based on sexual relations.39 The court thus held
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that the terms of the contract as alleged by Michelle relied on lawful consideration, providing a basis for declaratory relief in her favor.40
Several earlier decisions from the California courts made a similar distinction.41 Marvin followed these decisions, citing the principle that cohabitants should be able to contract with one another regarding property.42
Marvin is a watershed case because the California Supreme Court concluded that if cohabitants lacked an express contract, the court should inquire into the conduct of the parties to determine whether it demonstrated an implied contract, agreement of partnership or joint venture, or some other tacit understanding between the parties.43 To resolve these types of cases, the Marvin court allowed the use of the doctrine of quantum meruit, as well as constructive and resulting trusts.44 Given the public policy against cohabitation at the time, the Marvin decision was important.45
To reach its decision, the California Supreme Court in Marvin rejected several reasons previously used to deny relief to cohabitants. First, the court refused to deny relief as punishment for a nonmarital relationship because it necessarily rewards the other party.46 Second, the court noted that reasonable expectations and equitable considerations can exist outside of marriage.47 Third, the court rejected the idea that services provided with no express contract would be a gift.48 Finally, the court rejected the notion that an equitable distribution of property between nonmarital partners would discourage marriage.49 The court noted that, if anything, the inequitable distribution that would occur if no implied contract was
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recognized would discourage marriage since it would be much to the advantage of the property holder to remain unmarried.50
Family law generally falls within the domain of the states,51 and after the Marvin decision, most states followed California's lead, illustrating a shift in cultural attitudes and public policy.52 A minority of states decided not to follow Marvin for public policy reasons, with Hewitt v. Hewitt notably articulating this view.53
The Hewitt case from Illinois established the minority approach that does not enforce cohabitation contracts. In Hewitt, Victoria and Robert Hewitt cohabitated as students in college.54 After moving to Illinois, Robert worked in the medical field while Victoria cared for their children full-time.55 Victoria also assisted Robert in building his medical practice, using her skills and her parents' financial assistance.56 After 15 years of cohabitation, the couple separated and Victoria filed for divorce.57 The court dismissed the divorce action and held that Victoria was not entitled to any remedies,58 reasoning that giving her rights would devalue the institution of marriage59 and would essentially revive common law marriage, a doctrine that Illinois abolished in 1905.60
Ultimately, Victoria could not recover her contributions to the relationship despite its similarity to marriage.61 Given the Hewitt court's reasoning, a cohabitant could benefit from the other's contributions and leave the relationship with the accumulated wealth.
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The Hewitt decision remains good law in Illinois.62 Illinois has denied legal protections to cohabitants in other contexts as well, including claims for loss of consortium.63 In sum, the traditional rule regarding cohabitation, which now represents the minority approach led by Illinois, is that cohabitants do not have any rights between themselves.64
In states like Illinois, where cohabitants remain largely unprotected, people have reason to hesitate before making significant investments in a nonmarital relationship. Without adequate...
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