Question: I have been living with my boyfriend for a few years now. We both have been through divorces and both have grown children from our first marriages. Even though we have discussed the possibility of getting married, it seems like we aren’t in any rush to get into anything.
He recently inherited some money from his father, and I think that prompted some discussion about creating an agreement to deal with us living together. Along with the property issues, one of the reasons he mentioned was to address the possibility of common law marriage. Is there a chance that we already have a common law marriage? What would be the purpose of this agreement if we aren’t married?
Answer: You can breathe a deep sigh of relief as there is no “common law marriage” in California. Here, you have to officially tie the knot by signing the marriage license and — as with most things in life — pay the appropriate fee.
There are, however, some states in which common-law marriage or “informal marriage” is allowed. But even in those states, there is typically a legal process for making that informal marriage a formal one. You don’t just wake up and realize you’re married. That only happens after a wild night in Vegas.
The absence of common law marriage doesn’t mean that a long-term relationship isn’t without its own potential issues that resemble a dissolution of marriage. In California, the most famous case of a long-term relationship that led to major legal problems involved actor Lee Marvin. Marvin and his girlfriend of six years broke up, and she claimed that the two of them had an agreement to pool earnings, acquire property together, and offer to support one another for life.
She was not successful in her claim, but the California Supreme Court recognized that in 1976, times were changing, and more people were cohabitating and deciding not to marry. The court stated that non-marital cohabitating partners were able to enter a contract, be it either express or implied.
In other words, living together and having an intimate relationship could give rise to an enforceable contract with the other person. Without even expressing it, a cohabitating couple could have a “what’s mine is yours” arrangement that the law would ultimately treat as an implied contract. Or maybe one party’s extemporaneous pillow talk could give rise to an express contract.
California law allows people in intimate relationships to create binding and enforceable contracts in which the parties trade promises of support. The law’s chief restriction on these contracts is that they cannot, in the words of the California Supreme Court, “explicitly rest upon the immoral and illicit consideration of meretricious sexual services.” So keep the agreement clean.
A cohabitation agreement, like the one your partner is suggesting, involves the two of you actually drafting out the terms, usually with the assistance of counsel. Such an agreement can prevent any claims of an implied agreement between non-married partners by making any and all understandings and arrangements explicit. To the extent that one party believes that an express contract was made, the creation of an express agreement can dispel such a belief.
This type of agreement, also known as a “Marvin Agreement” after the famous case, is a contractual agreement between parties in an intimate personal relationship who live together but do not have immediate plans to wed.
From your question, it sounds like both of you recognize that there is some value in keeping your property separate. Your boyfriend’s inheritance is clearly his separate property, and it would even be his separate property if the two of you were married. Clarifying your mutual understanding with a Marvin Agreement may be helpful to both of you.
Preston Morgan is a partner at Kopper, Morgan & Dietrich, a Davis law firm providing family law, estate planning and trust litigation representation. His column is published every other week in the Davis Enterprise. To pose a question to Preston Morgan, contact him at https://kopperlaw.com.
Disclaimer – The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for advice regarding your individual situation. Any information, testimonials, or reviews on this website are not provided as a prediction, guarantee, or warranty of any particular result in your legal matter. We invite you to contact us and welcome your calls, letters and electronic mail. Contacting us does not create an attorney-client relationship. Please do not send any confidential information to us until such time as an attorney-client relationship has been established.