Many people believe that if a couple lives together for a period of years and holds themselves out to the world as a married couple, then the couple will be considered to be “legally married.” While this may be true in certain states, California abolished these common law marriages over a hundred years ago. A common law marriage can never be created in California; however it will recognize common law marriages that were created in states which do recognize them.

Even though California does not allow for common law marriages, couples who live together may still have rights to financial support and property division as if they had been legally married, but only under strict circumstances. In these cases, if one or both persons in the relationship had a reasonable and good faith belief that they had entered into a valid marriage, but it turned out the marriage was void, then that person can be considered a “putative spouse.” To be given the status of a putative spouse, it is not enough to say that you simply believed you had a common law marriage. Instead, the couple must have actually gone through the motions to get married, yet had something go wrong when trying to comply with the legal requirements for marriage (often this happens when one person was in a prior marriage and mistakenly thought that he or she was legally divorced). Not only that, but this good faith belief that you are married must continue throughout the marriage, if you find out that the marriage is invalid, then you lose putative status. Recently, it was also established that these same principles can be applied to couples who were in an unregistered domestic partnership. A person with putative spouse status will be entitled to share in property acquired during the invalid marriage or domestic partnership under our community property laws, and to any spousal support that is required once the relationship is terminated. A putative spouse may also have marital-type rights in other situations as well, such as workers compensation or retirement benefits (Wikipedia). The spouse who knew or should have known that the marriage was not valid will typically not be able to benefit from these provisions.

A second category involves the rights of unwed couples who are not putative spouses (because they never tried to get married), but had an agreement to treat assets like community property or promised lifetime support, despite the fact that both partners knew they were not married. Here, no one is entitled to support or property rights under California family law, but there can be rights created under the oral or written contract. One person may have promised to provide support for the other that’s similar to spousal support (alimony), and this has come to be known as “palimony.” These palimony actions started in the early 1970’s after actor Lee Marvin broke up with his girlfriend Michelle Triola, whom he had lived with for several years (Nolo.com).

Marvin Case

In Marvin, the plaintiff, Michelle Triola, alleged that she and Lee Marvin entered into an oral agreement which provided that while "the parties lived together they would combine their efforts and earnings and would share equally any and all property accumulated as a result of their efforts whether individual or combined." The parties allegedly further agreed that Michelle would "render her services as a companion, homemaker, housekeeper and cook." Michelle sought a “judicial declaration of her contract and property rights, and sought to impose a constructive trust upon one half of the property acquired during the course of the relationship.” (NYTimes.com)

The trial court granted a judgment on the pleadings in favor of the defendant, Lee Marvin, holding that the alleged agreement was unenforceable. The California Supreme Court reversed, stating that "a contract between non-marital partners is unenforceable only to the extent that it explicitly rests upon the immoral and illicit consideration of meretricious sexual services." The Court held:

“In summary, we base our opinion on the principle that adults who voluntarily live together and engage in sexual relations are nonetheless as competent as any other persons to contract respecting their earnings and property rights… So long as the agreement does not rest upon illicit meretricious consideration, the parties may order their economic affairs as they choose, and no policy precludes the courts from enforcing such contracts.” (NYTimes.com)

Although the plaintiff's complaint alleged only an express contract, the Supreme Court went on to address the issue of "the property rights of a non-marital partner in the absence of an express contract." Here, the Supreme Court made new law. Prior California cases had refused to enforce implied contracts between non-marital cohabitants. The Court overruled that line of cases, holding that in the “absence of an express agreement the plaintiff might be able to establish an implied contract or implied partnership, and might be able to invoke such remedies as constructive trust, resulting trust, and quantum meruit.” (NYTimes.com)

The problem for Triola, and many since, is that it can be very hard to prove the terms of an oral agreement. After winning her appeal, Triola’s case against Marvin was returned to the trial court for rehearing on Triola’s claims. The trial result was again in Marvin’s favor.

For this reason, it’s important to put promises into writing and couples who live together without getting married or entering into a domestic partnership should be forewarned. Many of these troublesome issues can be resolved with a written “cohabitation agreement” to help protect your interests if the relationship dissolves. As the two of you contribute toward your financial future together, a cohabitation agreement can set out fair arrangements regarding property ownership and division, and any support, similar to how a prenuptial agreement works. If you lived together before getting married, then both a civil palimony lawsuit and family court divorce (dissolution) action may be necessary, but note that palimony suits must be brought within a certain time period after the agreement is broken to prevent your claim from being barred (Nolo.com).

If you need more information, please schedule a free 1-hour consultation at The Law Office of Matthew J. Rudy.