Unmarried Cohabitant's Right to Support and Property

Right to Support and Property

Contracts and Agreements Between Unmarried Cohabitants
Marvin v. Marvin
Negotiating and Drafting Cohabitation Agreements
Breach of Promise to Marry
Ownership of Real Property

Contracts and Agreements Between Unmarried Cohabitants

Marvin v. Marvin[1]

More than twenty years have passed since Michelle Triola Marvin sued actor Lee Marvin, her live-in companion and lover of seven years, for one-half of the property acquired while they were living together and for financial support after their relationship ended. Michelle Marvin’s lawsuit introduced the word “palimony” - alimony for unmarried cohabitants - to the English language. Additionally, her 1976 California case focused attention on the possible legal consequences of non-marital cohabitation, especially the problems arising when the relationship ends.

When the lawsuit between Lee and Michelle Marvin concluded in August 1981,[2] long after the sensational headlines had vanished, Michelle Marvin was left with nothing. Following her victory in the Supreme Court of California that established the legal basis for her action and allowed her to proceed with her landmark lawsuit, she returned to the lower trial court to present her case. The trial court awarded her $104,000 for “rehabilitation.” Lee Marvin appealed this judgment. A 1981 California appeals court agreed with him, reversing the decision after applying the law which the Supreme Court of California had set forth and finding no equitable or legal basis for the award.

Michelle Marvin had a short-lived victory. However, the California Supreme Court decision that bears her name still stands as important case law. Indeed, the highest courts in several states have accepted the Marvin rationale.

The Marvin case outlines the property rights of unmarried cohabitants upon the termination of their relationship using basic contract law principles and rules of equity and fair play. Further, it recognizes as valuable contributions to the relationship, domestic services and career sacrifices made by an unmarried partner.

Maryland has indicated in Miller v. Ratner[3] that it might allow a claim for “palimony” to go forward, and it would undoubtedly look to the Marvin case for guidance. The Marvin case stands for the proposition that two competent unmarried cohabitants can contract with each other for the division of property acquired during their cohabitation and for support after the relationship terminates. The courts will enforce the contract provided the contract is not based solely on the consideration of sexual services.

Specifically, the California Supreme Court set forth the following as theories under which a plaintiff unmarried cohabitant could state a cause of action for a recovery of property and/or support:

courts should enforce express oral or written contracts that contain explicitly agreed-upon, definite and clear terms and conditions between nonmarital partners, except to the extent that the contract is explicitly founded on consideration for sexual services;

in the absence of an express agreement, courts should inquire into the conduct of the cohabitants to determine whether an implied contract, agreement of partnership or joint venture, or some other tacit understanding between them exists; and,
courts may use the legal doctrine of quantum meruit, which permits the award of money to a person who renders beneficial services (e.g., household services) to another person, expecting to be compensated for these services; or equitable remedies, such as a constructive or resulting trust, in order to fulfill the parties’ reasonable expectations and to do equity.

In Michelle Marvin’s case, the trial court found that she and Lee Marvin never agreed during their cohabitation to combine their efforts and earnings or to share equally in any property accumulated as a result of their efforts. Nor did they agree that she would give up her professional career as an entertainer and singer to devote her time fully to being his companion and homemaker. Further, the court found that Lee Marvin never agreed to provide for all of Michelle Marvin’s financial needs and support for the remainder of her life, and that he had no obligation to pay her a sum for her maintenance. In fact, the court found that Michelle Marvin actually benefited economically and socially from her cohabitation with the actor, and that he was never unjustly enriched as a result of their relationship or of the services performed by Michelle for him.

The case would probably have been different had the parties lived together for a substantial period of years in an actual and ostensible family relationship. Where cohabitants have lived together for 20 years, have raised children and have generally been regarded as husband and wife by the community, courts have found that, no matter where the legal title to the property lies, each cohabitant has an equitable interest in some portion of the accumulated assets.

Negotiating & Drafting Cohabitation Contracts

In Maryland, one point is clear: unmarried cohabitants can create express written contracts that are enforceable in a court of law. They can also create express oral contracts to divide personal property, but they are best advised to put into writing any divisions of real property.

Couples should consider drawing up a written “living-together contract” to determine in advance the status joint and separate assets and liabilities, duties and obligations, and other factors unique to each situation. This can be done with or without an attorney. However, consulting with an attorney about the consequences of signing and the validity of the contract is advisable.

For example, if the non-marital agreement is intended to continue into marriage, an attorney should be consulted to make sure that this intent is expressed clearly in the agreement. Also, each partner should use a separate attorney.

Since the motives for drawing up contracts will differ from couple to couple, there are no uniform clauses that apply to all negotiated, written contracts between unmarried cohabitants. However, suggested topics for such contracts include:

the names of the parties;
the goals and expectations for the relationship;
the duration of the agreement;
ownership, management and control of property and income;
the parties’ responsibilities for debts;
definitions of and responsibilities for support and living expenses;
household arrangements, including responsibilities for household chores;
personal and interpersonal relations (e.g., use of surname, responsibility for birth control, provision for illness or disability of one partner);
relations with others outside the contractual relationship (including career, social and community commitments);
provisions regarding care, custody and support of children;
procedures for changing the contract, resolving disputes or ending the contract, including mediation.

A sample agreement is available from American Jurisprudence Legal Forms Volume 9B (1996). There are also many other samples available. Please bear in mind that this form is offered only as a sample to suggest the types of provisions that might be included in a contract. Couples can use it either as a source of ideas or as a guide to drafting their own individualized contracts. Any of the provisions can be deleted or other provisions added to address their particular situation. This sample form is not a substitute for personal legal advice, nor is it a standard form that is to be used by all people.

Breach of a Promise to Marry

In 1945, Maryland abolished the common-law cause of action for the breach of a promise to marry. Despite the abolition, the issue resurfaced in the 1997 Court of Special Appeals case of Miller v. Ratner.[4]

In Miller, the plaintiff, Lonnie Miller, sued her former fiancé, Warren Ratner, for the breach of a promise to marry. Ms. Miller claimed that Mr. Ratner broke his promise to marry her and to support her after she had been diagnosed with breast cancer.

The Miller court reviewed the history behind the breach of promise to marry cause of action. Section 3-101 et seq. of the Family Law Article states that a breach of a promise to marry claim cannot be brought “unless the individual is pregnant,” and in any case, the promise to marry must be corroborated by other evidence. It is not enough that the pregnant woman says that the father of the child told her he would marry her.

Strictly interpreting the statute, the court ruled in Mr. Ratner’s favor. However, the Miller court stated that it might entertain a case in which one unmarried cohabitant sued the other for the breach of a promise to provide financial support or palimony.

The court, however, was careful to distinguish between promises to support made in anticipation of marriage and those made independently of any marital considerations. It stated that “(s)o long as persons initiate and maintain their relationships based upon promises of marriage, and its anticipation, rights arising out of those promises or agreements cannot escape the bar by being recast as agreements between nonmarital partners.”

On the other hand, “(n)onmarital partners can certainly be subject to suit for promises made independent of promises to marry so long as those actions are not shams intended to circumvent the actions prohibited by the statute.” Such actions may include breach of contract actions, actions in replevin or detinue to recover personal property, or actions for partitions to deal with real property.

On this basis, the court declined to consider Ms. Miller’s claim for financial support or palimony. Ms. Miller’s case may have failed in part because the court perceived “an inherent difficulty in maintaining a palimony action in this State when a plaintiff concedes that the relationship was based on promises and commitments to marry or in anticipation of marriage.”

Ownership of Real Property

Unmarried cohabitants’ rights regarding the ownership of real property are determined by how assets are titled. Partners may choose to own property as joint tenants or tenants in common. Property titled as either a joint tenancy or a tenancy in common is a form of ownership in which two or more persons have an undivided interest in the real property. The principal difference between a joint tenancy and a tenancy in common is that partners holding property as joint tenants have a right of survivorship, whereas partners holding property as tenants in common do not.[5] Thus, in a joint tenancy, when one partner dies, sole ownership of the real property automatically passes to the surviving partner. A tenant in common, on the other hand, can transfer their property interest via a will; or if the tenant in common dies intestate, their real property interest will pass under the statute of descent.

Under Maryland law, there is a presumption against joint tenancy. This means that documents, such as deeds, must expressly provide that the real property is to be owned as a joint tenancy for it to be legally recognized as such. Therefore, if purchasing real property with the intent of joint tenant ownership, explicit language indicating that intent is necessary. The deed must indicate ownership “as joint tenants.” In the absence of this language, ownership will be assumed to be a tenancy in common.[6]

[1] 18 Cal. 3d 660, 557 P.2d 106 (1976).

[2] 122 Cal. App. 3d 871, 171 Cal. Rptr. 555 (1981).

[3] 114 Md. App. 18, 688 A.2d 976 (1997), cert. denied, 345 Md. 458, 693 A.2d 355 (1997).

[4] 114 Md. App. 18, 688 A.2d 976 (1997), cert denied, 345 Md. 458, 693 A.2d 355

[5] Md. Code Ann., Real Property § 2-117 (1991).

[6] Downing v. Downing, 326 Md. 468, 606 A.2d 208 (1992).

Source: This section is drawn from the booklet entitled "Legal Rights of Unmarried Cohabitants in Maryland" produced by and available from The Women's Law Center. Updated 7/10/01.

Source: Maryland State Law Library (MSLL) Last Legal Update 02/06/08 (PLL/M.A.J.)