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Tuesday, September 25, 2018

Recent Cases on Cohabitation

In a recent post, I outlined two major and recent French family law innovations, including one related to cohabitation in the form of the PACS. 

Meanwhile, there have not been many legal developments on cohabitation in the U.S.  Most of the legal protections afforded to cohabitants by the law are still rooted in contract law—meaning that cohabitants should make agreements with each other regarding their responsibilities to each other, which may be enforced by the courts upon separation of the cohabitants.

However, the traditional view on cohabitation—which is still the minority approach in some American states—is that cohabitation contracts will not be enforced because cohabitation and agreements based on sexual relationships are against public policy.  Illinois is the leading state taking this position, and despite the opportunity to change its approach to cohabitation and recognize cohabitation agreements last year, the Illinois Supreme Court declined.

There were several other recent legal cases on cohabitation in the United States, but they also have been relatively modest.  For example, New Jersey now requires written contracts instead of oral contracts in palimony enforcement actions between cohabitants.  The problem, of course, is that very few cohabitants enter into written contracts before moving in together, so they are often left unprotected at the end of the relationship.   

Otherwise, the law is just not moving as fast as people are when it comes to moving in together.  I consider a few other minor legal developments on cohabitation in the comparative context with a European co-author in our forthcoming Georgia State law review article, available here if you’re interested.

Posted by Margaret Ryznar on September 25, 2018 at 05:16 AM | Permalink


Margaret, you may find great interest here:

"A New Legal Reason to Keep Secrets From Your Spouse: No More Privilege"


Posted by: El roam | Sep 12, 2019 7:00:22 AM

And, regarding written cohabitation contracts in Illinois, there is no guarantee that they will get enforced in the Illinois courts. Unjust Enrichment is, however, available as a remedy.

Also, the 3 parents in poly relationships is an interesting development--I'll have to look into it; thanks.

Posted by: Margaret Ryznar | Sep 26, 2018 3:04:21 AM

Thanks for all these great comparative examples--they're helpful. I should say that the ALI Principles on domestic partnerships have provided factors that together attempt to define cohabitation, including the oral or written statements or promises made to one another, or representations jointly made to third parties, regarding their relationship; the extent to which the parties intermingled their finances; the extent to which their relationship fostered the parties' economic interdependence, or the economic dependence of one party upon the other; and the extent to which the parties engaged in conduct and assumed specialized or collaborative roles in furtherance of their life together. However, states and courts have resisted adopting these or any other definition of cohabitation. But, providing them additional examples of definitions from other countries can't hurt.

As for unjust enrichment and contract damages, I would say that they are both tools in the court's kit to achieve a result they want in cohabitation cases, but often it's one or the other.

Posted by: Margaret Ryznar | Sep 26, 2018 2:49:50 AM

You should look at BC Canada family law act.
B.C.'s Family Law Act

3 (1) A person is a spouse for the purposes of this Act if the person

(a) is married to another person, or

(b) has lived with another person in a marriage-like relationship, and

(i) has done so for a continuous period of at least 2 years, or

(ii) except in Parts 5 [Property Division] and 6 [Pension Division], has a child with the other person.

(2) A spouse includes a former spouse.

(3) A relationship between spouses begins on the earlier of the following:

(a) the date on which they began to live together in a marriage-like relationship;

(b) the date of their marriage.

End quotes, note that neither the sex of the spouses nor the number of spouses is mentioned. Recently there have been birth certificates issued listing 3 parents in poly relationships.

Posted by: David R | Sep 25, 2018 6:05:16 PM

And by the way Margaret , if there is no formal definition , in any statute or act to be found , you can create it by yourself . The point would be , not rigid definition of course , but , prescribing tests , among others , or what to seek for , but not limited to . Here for example , a good model , would be :

" The Partnership Ordinance " of Hong kong , defining in less rigid manner , what is ,or how to identify partnership , here I quote :

4.Rules for determining existence of partnership

In determining whether a partnership does or does not exist, regard shall be had to the following rules—

(a)joint tenancy, tenancy in common, joint property, common property, or part ownership does not of itself create a partnership as to anything so held or owned, whether the tenants or owners do or do not share any profits made by the use thereof;

(b)the sharing of gross returns does not of itself create a partnership, whether the persons sharing such returns have or have not a joint or common right or interest in any property from which or from the use of which the returns are derived;

(c)the receipt by a person of a share of the profits of a business is prima facie evidence that he is a partner in the business, but the receipt of such a share, or of a payment contingent on or varying with the profits of a business, does not of itself make him a partner in the business; and in particular—

(i)the receipt by a person of a debt or other liquidated amount, by instalments or otherwise, out of the accruing profits of a business does not of itself make him a partner in the business or liable as such;

(ii)a contract for the remuneration of a servant or agent of a person engaged in a business by a share of the profits of the business does not of itself make the servant or agent a partner in the business or liable as such;

(iii)a person being the widow or child of a deceased partner, and receiving by way of annuity a portion of the profits made in the business in which the deceased person was a partner, is not, by reason only of such receipt, a partner in the business or liable as such;

(iv)the advance of money by way of loan to a person engaged or about to engage in any business on a contract with that person that the lender shall receive a rate of interest varying with the profits, or shall receive a share of the profits arising from carrying on the business, does not of itself make the lender a partner with the person or persons carrying on the business or liable as such: Provided that the contract is in writing and signed by or on behalf of all the parties thereto; and

(v)a person receiving, by way of annuity or otherwise, a portion of the profits of a business in consideration of the sale by him of the goodwill of the business is not, by reason only of such receipt, a partner in the business or liable as such.

End of quotation :

The same can be done by you , concerning how to identify , or how strong is the cohabitation one deals with , example ( just for illustration ) :

- Common bank account .
- Even if two , expenses are mixed .
- Both registered on the same address .
- More than 4 days a week , living under the same roof.


Here to the ordinance :



Posted by: El roam | Sep 25, 2018 11:21:43 AM

Great research . Yet , bit weird , that finally , we couldn't read , a coherent legal definition for cohabitation . That fact that , I quote :

" Cohabitation scenarios therefore widely differ"

Then it does necessitate a clear and coherent legal definition . For many times , it may look clearly and spontaneously as cohabitation , but , not at all so legally . One may think for example , of a situation , where they both live together , and even consistently so , yet , the fact , that each one holds different bank account , different income , both the latter not mixed at all , and only sharing expenses has to do with the household ( narrowly ) would render it finally , as a non cohabitation situation one may argue . One may think also , of the formally registered address . It may change one may claim , whether registered both on the same address , or not .

Also , in that landmark case of "Hewitt" from Illinois : Suppose , that there was a contract there , written even . What would the court do then . Because , one thing is to rule , that it would devalue the institution of marriage , but , another thing , not to enforce written contract per se . How would the case be prevailed in such situation ?? For there is certain tension or conflicting public interests in such situation . Not to enforce contract , due to public interest , demands serious reasoning .

Finally , how would you reconcile that contradiction :

On one hand claiming that unjust enrichment can lead to remedy ( for example due to " blatant ingratitude " ) on the other hand , it looks ( at least in Poland it seems ) as if , in noway , separation would give rise to liability for damages ( it is mentioned there , living the cohabitant while he was sick for example ).Unjust enrichment , may be considered per se , as tort by the way .


Posted by: El roam | Sep 25, 2018 9:08:09 AM

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