Do You and Your Unmarried Partner Need a Cohabitation Agreement?

More and more, I hear of couples who are choosing to live together and even have children together without ever getting married. The increase in the number of people choosing to do this is probably for many reasons, although often it seems to be related to the fear of getting divorced. Many younger couples may have been through a nasty divorce with their parents and swore never to do that. For others, it just may be that marriage doesn’t seem as necessary as it might have been in the past, and they’re perfectly happy to hold themselves out as if they were married but to never actually legally marry.

Now I am all for doing whatever makes you and your partner happy, and my husband and I didn’t get married till about a year ago, and we’ve been together almost eight years. That being said, far too often, people don’t understand what it can mean to cohabitate with someone for so long and never get married. If you break up with that person, it can be just as messy, if not more sometimes, than a divorce. While California doesn’t recognize common law marriage (and at this point, very few states do), if you hold yourself out as married, do things jointly like buy a home and have a family together. You’ll want to consider some legal issues when you’re going to cohabitate with someone and to think about entering into a cohabitation agreement.

Defining Cohabitation

So first off, it’s probably helpful to define cohabitation and what I mean by that. Cohabitation is an arrangement where two people are not married but live together. They are usually involved in a romantic or sexually intimate relationship on a long-term or permanent basis. While it’s possible to cohabitate with someone that you’re not in a romantic relationship with since, in a broad sense, cohabit means to “coexist,” but for the purposes of this article, I’m discussing just those relationships that are of a romantic or sexually intimate nature.

Buying or Renting a Home Together

More often these days, even if people are going to get married (like I did), they are still going to cohabitate before they get married, whether that’s renting a place together, buying a home together or one person owns a place that the other person is going to now live in with them. When my now-husband and I bought our house back in 2018, we were not yet married, and we talked a lot about what it would look like and entered into our cohabitation agreement to address the various issues we knew would come up from the down payment to sharing expenses. If you and your partner choose to buy a home together, it’s important to discuss these different issues, especially if you’re not going into it completely equal. It’s normal that in a partnership, both people don’t have the same amount of money or make the same amount of money, so if you’re buying a home together, one of you may be putting more money into it. If you’re married well, it’s all community property.

Still, if you’re not married, you’ll want to make it clear what percentage each of you is putting into the home and how you’re paying the expenses, and whether that also changes the ownership percentage. There isn’t necessarily one “right” way to do it, but it’s essential to communicate these before they become an issue. Now, if you’re not purchasing a home together, there may be fewer things to discuss, but you’ll still want to make sure you’ve discussed how you’re handling expenses and stuff like that. And if one of you owns the home but you’re both living there, is the other person just paying rent, or are they potentially gaining an interest in the equity in the property that, if you broke up, they’d want to be reimbursed for.

These are just some essential questions to think about when you start to live together. While no one expects to break up, just how premarital mediation and an agreement is vital to establish how you want to handle things. At the same time, you’re married, cohabitation mediation and an agreement are important to show how you want to handle things while cohabitating together, especially since if you break up, there is no state family law to protect your interests. Additionally, suppose you have property you want to go to the other person. In that case, it doesn’t automatically pass to them as it may if they were your spouse, so you’ll want to make sure also to consider what estate planning documents you need to make sure are in place.

Having Children Together

In the most recent date from 2020, over 40% of all births were to unmarried couples, and many of those were to couples living together but not married. Now, in California, it doesn’t matter if you’re married or not when you have a child together; however, if you break up and want the courts to enter custody and visitation orders for you, then you’ll need to establish paternity before they’ll do so. In many instances, this can be very easy to do. However, it still involves you dealing with the courts and filing a case that will only deal with custody, visitation, and child support (if necessary). Suppose you are not married when you have your child(ren) together, then in California. In that case, it’s important to sign a voluntary declaration of paternity at the hospital to make it easier to establish paternity down the road. While you can’t necessarily agree to things around parenting or child support in a cohabitation agreement, it’s important to consider things with children.

Marvin Actions

A Marvin claim is a legal claim to enforce expressed or implied agreements for support or property sharing between non-marital partners after a split since unmarried partners do not have automatic rights like a married couple would in a divorce. Marvin actions get their name from the 1976 California Supreme Court decision with the actor Lee Marvin (the defendant) and his partner Michelle Marvin (the plaintiff). He had lived together for seven years without marrying. All property had been taken in the defendant’s name, and the plaintiff sued to enforce what she claimed was an implied contract that she was entitled to half of the property he had acquired and support payments.

They had held themselves out as if they were married, and the court upheld the plaintiff’s argument of an implied contract. Marvin actions must be filed in a civil court, and they can be challenging to win but also very expensive for both sides to deal with. These claims can arise if you were to split from your longtime partner (and there isn’t a definition on how long it must be) or if they were to pass away and you were claiming that particular property should pass to you.

If you are planning to cohabitate, especially without a plan to marry, you may want to consider discussing and including a clause to waive any future Marvin claims if they were to arise.

Are you cohabiting with a partner already or considering it and want to discuss a cohabitation agreement? Contact West Coast Family Mediation Center at (858) 736-2411 to schedule a free virtual consultation.

by: Amanda Singer

Amanda Singer with west coast family mediation center

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