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Marvin: For Those Who Cannot, or Do Not Want to Marry

While marriage is “fundamental to our very existence and survival (Loving v. Virginia),” there are reasons why a traditional marriage might not be on option. A Marvin relationship is a type of contractual relationship that allows the partners to determine property characterization in the event of a break-up and allows for an agreement regarding partner support.  This agreement works like a prenup, and explains what will happen if the partners break-up.

WHY NOT MARRY:

LGBT:

Under current California and federal law, LGBT Californians cannot marry partners of the same sex.  During the brief window of marriage equality in California, LGBT couples wed.  For those of them seeking a divorce, problems typically arise with so-called ‘short-term marriages’ of LGBT couples who had been operating as an economic unit much earlier than their marriage.   Because the court only looks to property acquired from date of marriage to date of separate as community property, anything acquired prior to legal marriage is typically characterized as separate property of the acquiring spouse.

Hence, for example, a couple that acquired property together for ten years prior to their legal marriage (because they weren’t allowed to marry), would have to turn to a civil court outside of the family court judge that presided over their divorce, to determine the shared interest in any property or assets acquired prior to legal marriage.  A Marvin action (discussed fully below) would allow a partner in such a relationship to determine his or her interest in this property acquired during the pre-marital cohabitation.

COHABITATION:

“Some couples may wish to avoid the permanent commitment that marriage implies, yet be willing to share equally any property acquired during the relationship…others may engage in the relationship as a possible prelude to marriage,” the California Supreme Court noted in the landmark 1976 decision of Marvin v. Marvin.  In a case dealing with a six-year cohabitating heterosexual couple, the Supreme Court acknowledged the “substantial increase in the number of couples living together without marrying.”

Why might a couple live together and not marry? In one California example, the children would have lost their insurance coverage if their mother remarried (see Byrne v. Laura).  Marvin too noted that some people “may fear the loss of pension, welfare, or tax benefits” following a marriage.

WHAT MARVIN MEANS:

Marvin ruled that cohabitating non-marital couples can form agreements between themselves, and courts could enforce these agreements.  “If a man and a woman [who are not married] live together as husband and wife under an agreement to pool their earnings and share equally in their joint accumulations, equity will protect the interests of each in such property,” the court affirmed.  This applies to a man and a man, or a woman and a woman as well.

Hence, if two partners agree to live together with an agreement and understanding of how to share the acquired assets, California will honor that agreement.   The partners may agree to form an economic unit (as the law would treat California spouses), and hold all property acquired during the relationship in accordance with the law governing community property; conversely they may agree that each partner’s earnings and property remains separate property of the earning spouse (see Marvin).  This means that partners in a Marvin relationship may form cohabitation agreements akin to spousal premarital agreements.

If a Marvin-type relationship is coming to an end, then the partners can enforce those agreements.  Property can be equally distributed (if that was the agreement), and partner support can be secured (if that was the agreement).

Why This is an Important Change:

California (like many states) recognizes non-marital (ie: same-sex) couples are living as a family.   California allows these couples to create enforceable agreements regarding the division of property and support.  This contrasts with many courts in the past who ruled these types of agreements as ‘bad social policy’ (and unenforceable) because of the strong preference for marriage and hetero-normative households.

No Common Law Marriage in California:

California does not have common law marriages (informal marriages established by conduct).  A Marvin relationship does not mean the partners were ‘married,’ so the rights granted to marital spouses do not pass on to Marvin partners.  Marriage comes with significant rights and responsibilities.  One set of rights and obligations is a fiduciary duty between spouses with regard to the management and control of marital assets, and a remedy for a breach of that duty (see California Family Code §§1100-1103).  Instead, Marvin partners only get the right to enforce the contracts established by the partners.

WHAT A MARVIN RELATIONSHIP REQUIRES

A Marvin suit is an action to enforce a contract.  That means in order to have a Marvin-type of relationship, the partners needed to have an agreement (a contract) that would provide for equal distribution of property (if that was the agreement), or partner support (if that was the agreement); any rights acquired through a Marvin relationship are those agreed upon by the partners.

Express or Implied Agreement

Ideally, a cohabitation agreement is written and signed by the partners (which would make it an express agreement).  However, an express agreement is not required.  “The Courts may inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract or implied agreement, or some other tacit understanding between the parties.

If there is no written express agreement, the implied agreement must be proven with a ‘preponderance of the evidence’ (meaning the contract’s existence is certain more probable than not).  If title to property is held solely in one partner’s name, but there is an implied agreement to equally own the property, that agreement must then be proven by “clear and convincing” evidence (see California Evidence Code §662).

There are several theories for recovery in a Marvin suit, and all of them are largely based in contract law (unlike other support actions which are based in family law).  Once a contract is proven, the partner can sue for a breach of express contract, breach of an implied contract, breach of a implied partnership or joint venture, quantum merit (the value of beneficial services rendered), or imposition of a trust.  The Marvin decision also leaves room for “additional equitable remedies,” which were unsuccessfully argued when the Marvins returned to court.

An attorney should be careful to only seek damages under those theories that the attorney can support with probable cause; otherwise a counter claim for malicious prosecution may be available to the other party (see Crowley v. Katleman).

Cohabitation

The non-marital partners are required to live together.  “If cohabitation were not a prerequisite to recovery, every dating relationship would have the potential” to be a Marvin-type relationship where partners ask for equal division or support at the break-up (see Bergen v. Wood).

Usually full-time cohabitation is required, but there have been some successful Marvin suits where the couple only lived together part-time.  Cohabitation requirements may be satisfied in “appropriate” cases by living arrangements that are less than full time (see Cochran v. Cochran).

No ‘Consideration of Meretricious Sexual Services’

Meretricious is ancient Latin for prostitution.  Sex cannot be an inseparable part of the non-marital cohabitation agreement.  The Marvin court explained, “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 agreements.”  Courts know that partners have sex, so an agreement by one partner to ‘do whatever a spouse does’ does not solely rest on meretricious consideration, even though sexual relations are one aspect of what a spouse does (see Alderson v. Alderson).

Sexual Orientation

The focus of Marvin-type relationships is not the partners’ gender or sexual orientation, but rather the existence of an agreement.  Nothing in Marvin suggests that this type of action is limited to heterosexual couples.  In fact, a Marvin suit was brought against tennis player Martina Navratilova by her partner in an action for partner support in a non-marital relationship (palimony).  A Marvin suit also ‘outed’ figure skater Brian Orser.

Because LGBT Californians are not allowed to marry, a Marvin type of relationship might afford them some legal protections.  What is most important, however, is that the couple has an understanding of the expectations the partners have of the relationship, and of each other.  This understanding will not only make a Marvin suit go smoother, it could also enhance the chances of a successful relationship.

 

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Filed under Partner Support, Property Determination, Same-Sex, Spousal Support