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Negotiating & Drafting Cohabitation Contracts
In Maryland, unmarried cohabitants can create express written contracts that are enforceable in court. They can also create express oral contracts to divide personal property, but best practice is to put any divisions of real property into writing.
Couples should consider drawing up a written “living-together contract” to determine, in advance, the status of joint and separate assets and liabilities, duties and obligations, and other factors unique to each situation. You can do this with or without an attorney. However, it's a good idea to consult with an attorney about the consequences of signing the contract and the validity of the contract.
For example, if the non-marital agreement is intended to continue into marriage, consult an attorney to make sure that this intent is expressed clearly in the agreement. Each partner should use a separate attorney.
Since the motives for drawing up contracts 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; and
- procedures for changing the contract, resolving disputes or ending the contract, including mediation.
Contact your local law library for assistance in obtaining sample agreements and templates. There is no standard form that can be used by all people. However, you can use these samples as sources for ideas or as guides to drafting your own individualized contracts. Any of the provisions can be deleted or other provisions added to address your particular situation. Be aware that the sample forms are not substitutes for personal legal advice.
Breach of a Promise to Marry
Can I sue if my partner breaks a promise to marry me?
No, unless the suing party is pregnant. Even so, Section 3-102 of the Family Law Article states that a breach of a 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.
Read the law: Md. Code, Family Law § 3-102
What if my partner promised to provide financial support to me, in anticipation of us getting married?
Generally, if the promise is made in anticipation of marriage, it is not enforceable because Maryland no longer recognizes a cause of action for breach of a promise to marry. However, other promises regarding support or property may be enforceable. This is explored in more detail in the case of Miller v. Ratner.
The court in Miller was careful to distinguish between promises to support made in anticipation of marriage and promises made independently of any marital considerations. Promises regarding financial support, for example, that are independent of marital consideration may be enforceable, “so long as those actions are not shams intended to circumvent the actions prohibited by the statute.”
Such action might include a non-married partner suing for partition of real property the parties bought together, or to recover personal property from the other person, among other contract or tort actions. Consult with an attorney to determine if a promise made by an unmarried partner is enforceable through one of these means.
Read the case: Miller v. Ratner, 114 Md.App. 18 (Court of Special Appeals, 1997)
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. These are forms 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 the right of survivorship. The right of survivorship means that sole ownership of the real property automatically passes to the surviving partner when the other partner dies. Joint tenants carry a right of survivorship whereas partners holding property as tenants in common do not. However, a tenant in common can transfer their property interest to the other partner via a will. If the tenant in common dies without a will, their real property interest will instead 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. For example, the deed must explicitly state that ownership is “as joint tenants.” Without this language, ownership will be assumed to be a tenancy in common. Learn more about joint ownership of property.