Living Together Contracts Are Legal

250  |  A Legal guide for Lesbian and Gay Couples
And if you do in fact split up, having an agreement helps you avoid
taking your troubles to court. The risks, trauma, and expense of litigation
are far less likely to be visited on those who have taken the time to define
their understanding in an agreement.
Living Together Contracts Are Legal
The legal rules governing nonmarital cohabitation contracts have mostly
been made by courts and judges, not by legislatures. The leading court
case is Marvin v. Marvin (557 P.2d 106 (1976)). The case involved the late
actor Lee Marvin and the woman he lived with, Michele Triola Marvin.
(She used his last name even though they were not legally married.) In
the Marvin case, the California Supreme Court announced new legal
principles involving the right of unmarried couples to make contracts.
First, the court ruled that marital property laws do not apply to couples
who are not legally married. Then, the court recognized that unmarried
couples are here to stay, saying:
The fact that a man and a woman live together without marriage, and engage
in a sexual relationship, doesn’t in itself invalidate agreements between them
relating to their earnings, property, or expenses. Neither is such an agreement
invalid merely because the parties may have contemplated the creation and
continuation of a non-marital relationship when they entered into it.
The court concluded by stating that agreements between nonmarried
partners are valid unless they are based on an exchange of sex for money.
The court in Marvin declared four principles of contract formation:
• Unmarried couples may make written contracts.
• Unmarried couples may make oral contracts.
• If a couple hasn’t made a written or an oral contract, the court
may examine the couple’s actions to decide whether an “implied”
contract exists.
• If a judge can’t find an implied contract, the court may still presume
that the parties intend to deal fairly with each other, and may
find one indebted to the other by invoking well-established legal
doctrines of equity and fairness.
chapter 8  | living together contracts for lesbian and gay couples |  251
Since the Marvin decision, several cases in different states have applied
these principles to contracts made by gay and lesbian partners. Most
states enforce contracts between gay and lesbian partners, but in some
states only written contracts will be enforced. A small number of states
prohibit contracts between unmarried couples on the basis that they
foster immorality, and a few haven’t considered the question. Most
distressingly, some recent laws relating to gay marriage purport to ban
private contracts between same-sex partners. It’s uncertain whether these
laws will be validated by the courts, but at the very least they will be a
nuisance to anyone trying to enforce a living together contract in states
that have them.
Any contract that even hints that sex is the basis for the deal will be
thrown out of court. A California appellate court refused to uphold a gay
living together contract, declaring that it explicitly referred to rendering
sexual “services” as a lover in exchange for assets, and was therefore, in
effect, an agreement for prostitution. So don’t make any reference to sex
in your contract. Identify yourselves as “partners,” not “lovers.”
Of course, you can feel free to discuss your sexual relationship with
each other when preparing your contract (or any other time). But
discussing with each other what’s sexually expected, permitted, condoned,
or forbidden isn’t the same as mentioning sexuality in a property contract.
It is especially important that you not make monogamy a condition for
any financial provision, however important fidelity may be for you.
Most courts faced with enforcing a living together contract uphold
written ones, reject implied ones unless there is very clear evidence
supporting the claims, and fall somewhere in the middle with oral
ones. When one partner says there was an oral contract while the other
emphatically denies it, a judge is unlikely to find that the contract existed
unless other evidence (such as a witness to a discussion about the contract
or subsequent action) substantiates it. General vows, such as those uttered
in a commitment ceremony, usually aren’t considered to be legally
binding. Paradoxically, when one partner dies and the other claims there
was an oral contract entitling him to property, a judge is more likely to
sympathize with the survivor and find in favor of a contract, especially if
no one refutes it.