Nonmarital Cohabitation

• Pages: 69-83
• Author: Walter Wadlington,Raymond C. O'Brien,Robin Fretwell Wilson

69

Chapter 4

NONMARITAL COHABITATION

I. Parameters of Intimate Nonmarital

Cohabitation

Chapter 1 discussed the evolution of nonmarital cohabitation

from the guarantee of privacy established in Griswold v. Connecticut

(1965), the right of individuals to be left alone in Eisenstadt v. Baird

(1972), and the reproductive freedom guaranteed under Roe v. Wade

(1973). In 1976, the Supreme Court of California in Marvin v.

Marvin, held that public policy had shifted sufficiently to permit the

enforcement of contracts involving property between nonmarital

cohabiting couples presumptively engaging in sex. Other states

followed California’s lead and throughout the following decades,

state courts grap pled with enf orcement of nonmarital contracts

involving opposite-sex and same-sex couples concerning division o f

property, support obligatio ns, and establishi ng parenthood. These

issues continue to arise even though the status of marriage offers the

mechanism for opposite-sex and same-sex couples to achieve a

modicum of certainty for property, support, and parenthood.

Continuing a decades-long trend, an increasing number of

eligible adults are choosing nonmarital cohabitation rather than

marriage. Inde ed, between 2000 and 2010, the population grew by

9.7%, but the husband and wife households only grew by 3.7%, while

unmarried couple households grew by 41.4%.

1

Roughly half of the

cohabiters are younger than 35—but cohabitation is rising most

quickly among Americans ages 50 and older,

2

a status described as

living together apart (LATS).

By choosing nonmarital cohabitation couples are declining to

participate in established status arrangements such as marriage and

choosing instead to self-order their wealth and the ir families. This

choice precipitates litigation when the nonmarital cohabitants

separate. In deciding whether to award division of property acquired

in the name of one party alone, or to ord er support fo r domestic

services, the court s look first to any express or implied agreement

and if n one, then to equitable principles such as unjust enrichment

1

See Kaiponanea T. Matsumura, Consent to Intimate Regulation, 96 N.C. L.

REV. 1013 (2018).

2

A.W . Geiger & Gretchen Livingston, 8 Facts a bout Love and Marriage in

America, PEW RESEARCH CTR. (Feb. 13, 2018), http://www.pewresearch.org/fact-tank/

2018/02/13/8-facts-about-love-and-marriage/.