Non-marital Cohabitation in the USA

By | September 4, 2021
Non-marital Cohabitation in the USA

Last Updated on by Admin LB

This article on ‘Non-marital Cohabitation in the USA’ is written by Pranava Pishati and provides a quick overview of how these relationships are considered in courts and what remedies are available in the event of an injustice occurring to one individual during or after the course of their cohabitation.

I. Introduction

Previously, cohabitation outside of marriage was widely regarded as dishonourable, which made non-marital cohabitation extremely rare. The vast majority of the new Family Law Section members almost certainly did not know anyone who had cohabited outside of marriage and hence the need for recognizing non-marital cohabitation never occurred.

Premarital sex gave way to open premarital cohabitation. What began as a countercultural innovation associated with right-winged activists became an accepted element of young culture in an extremely short period of time[1].

This was quickly adopted by the older age categories, and the parents of young cohabitants frequently chose to cohabit as well. Because of the stress and responsibility that come with marriage, couples preferred non-marital cohabitation as there are no time constraints or commitment liabilities; they can spend more time with each other than in marriage.

In a non-marital cohabitation relationship, the burdens of social relationships are reduced. If individuals realize that their relationship isn’t working out, they have the option to end it at any moment. In the same circumstance, married couples must go through the process of sharing debt and family assets, and they must frequently step back for the benefit of their children. However, because there are no legal responsibilities incumbent on them, the very same reasons might result in one spouse exploiting another in regards to debts, loans, children, and so on.

II. First Recognition

The abundance of nonmarital relationships in modern society and the social acceptance of them obliged courts to reject old legal standards and consider non-marital cohabitation, it was first discussed in the Marvin v. Marvin case, in which the court approved the enforcement of explicit relational contracts between cohabitants; where the couple lived together for seven years without marrying, with all property accumulated during this time being transferred to the defendant’s name.

Plaintiff claimed that she and the defendant made an oral agreement in which they agreed to combine their earnings and divide equally any property accumulated as a result of their efforts[2]. Plaintiff decided to forego a career as a singer and entertainer in order to take on the role of housewife, with the defendant pledging to cover all of the plaintiff’s financial needs. Plaintiff was forced to leave the defendant’s residence.

Plaintiff filed suit to enforce the oral agreement, alleging she was entitled to half of the property as well as support payments[3]. The trial court allowed the defendant’s petition for judgment on the allegations and permitted trial courts to Investigate the parties’ behaviour to see if it reveals an implied contract, an implied arrangement of partnership or joint venture, or some other implicit agreement.

In addition to relay protection on express and implied contracts, the court approved the continuation of relying on equitable remedies like quantum meruit, constructive trust, and resulting trust and it left open the possibility of further litigation “Additional equitable remedies are available to protect the expectations of nonmarital relationship parties when existing remedies are insufficient.

It was ruled that “no express contract was made between the parties” and that “the parties’ conduct does not demonstrate any implementation of any contract nor gives rise to an implicit contract.” The court went on to conclude that there was no “joint effort” to promote recovery and that no equitable remedies resulting in trust, constructive trust, or quantum meruit were available “in good conscience.”

Despite finding unlawful discrimination and no express or implied contract, the jury granted her $104,000 in alimony “so that she may have the economic means to re-educate herself and to learn new, employable skills or to renovate those used.

However, this award which was not sanctioned by the contract method established in Marvin was quickly overturned on appeal. The court held that implicit contractual claims in nonmarital partnerships should be permitted.

Courts outside of California have similarly taken a tough stance on cohabitation claims. Despite the fact that the majority of U.S. jurisdictions have followed Marvin, only one high court, in Washington, has gone beyond Marvin’s contract model to allow recovery based on the fact of cohabitation, without any finding of fraudulent misrepresentation or an agreement.

Courts in other states had been cautious of widening the legal standing of cohabitants, almost always following the California Supreme Court in declining to broaden to cohabitants rights available to married couples; virtually none have prolonged to cohabitants the right to obtain loss of collaboration damages when a partner is injured or permitted cohabitants to obtain other welfare payments.

The court stated that Cohabitation contracts are also enforceable, as long as the relationship is not meretricious (a relationship relating to prostitution or a contract in which sex is considered). The state of Washington took a completely different stand on this, it referred to cohabiting relationships as “meretricious relations”.  although most jurisdictions enforce same-sex cohabitation agreements the same way they enforce opposite-sex cohabitation agreements, Washington has concluded that “meretricious relationships” can only exist between opposite-sex couples[4].

III. Obligation and rights

In the United States, unless they have contracted to assume such obligations, unmarried cohabitants had no definitive legal rights or obligations to each other. “Conscriptive” laws that base cohabitant obligations on status rather than contract have been implemented in a number of other countries, and the American Law Institute has campaigned for their adoption in the United States.

The American Law Institute (ALI) established a set of principles in 2001 to create rights and obligations between cohabiting partners during dissolution based on their actions rather than their formal agreement[5].

These rights and obligations concern the attribution of custodial and decision-making authority over children, the payment of child maintenance, the split of property, and the transfer of monies as compensating spousal alimony. The regulations governing custody and child support are largely unconcerned about the marital status of the parents.

The ALI defined under its principles that domestic partners are two individuals who are “not married to one another, who for a significant amount of time share a primary house and a life together as a pair.” Domestic partners are two people who share a child and have “kept a common residence” for a set amount of time, known as the “cohabitation parenting period.[6]

This is an incontrovertible classification that pretty much covers up cohabitation without delving into the intricacies and over-analysing it.

IV. Establishing a Non- marital Cohabitation

The principles outline thirteen criteria that can be used to counteract the presumption formed by the length of cohabitation. Whether the amount of time, with or without a child, has been insufficient to establish the presumption, or if the two people are biologically related or adopted, the same thirteen reasons can be used to prove the existence of a domestic partnership.

The thirteen variables represent “all of the circumstances” that would determine if the two people “live a life together as a couple.”

They contain written and oral comments regarding the connection, as well as commitments made to one another. ‘representations made to third parties about the relationship, as well as the pair’s reputation as a couple in the community; pooling their finance; economic involvement or relying on one person on the other; presumption of specialized roles by the parties; changes in either or both parties’ lives brought about by the relationship; naming each other as financial beneficiaries and naming each other in documents such as wills; participation in a marriage ceremony or partnership registration; joint nurturing of a child[7].

Once a domestic partnership is established under the ALI, dissolution of that relationship occurs under a system remarkably similar to that governing divorce, including judicially equal division of property and the provision of compensation payments. Those who prefer to organize the economic effects of their connection under other rules, such as couples, may do so by contract.

V. Conclusion

To summarize, the Marvin decision significantly increased the spectrum of rights and remedies accessible to cohabiting couples. The ruling also signalled that a significant change in the legal status of cohabitation was in the works.

With this gradual evolution, the ALI was able to lay out acceptable norms that safeguarded spouses from being exploited. The principles defined “emotional or physical intimacy” as a single criterion determining whether the partners live together as a couple.

However, most ideological opponents of the ALI Domestic Partners Chapter believe that the ALI Principles are a problem since they validate gay and lesbian partnerships and move society closer to enabling same-sex marriage.


[1] Garrison M, ‘Nonmartial Cohabitation: Social Revolution and Legal Regulation’ [2008] Brooklyn Law School Available Here, accessed 24 August 2021.

[2] Marvin v. Marvin, 18 Cal. 3d 660, 557 P.2d 106, 134 Cal. Rptr. 815, 1976 Cal. LEXIS 377 (Cal. 1976).

[3] ‘Marvin V. Marvin | Case Brief for Law Students’ ( Available Here, accessed 24 August 2021.

[4] 52 UCLA L. Rev. 815 (2005).

[5] Alvare H, ‘U.S. Cohabitation Law: Still Separate and Unequal’ (Institute for Family Studies, 2019) Available Here, accessed 24 August 2021.

[6] Polikoff, Nancy D. () “Making Marriage Matter Less: The ALI Domestic Partner Principles Are One Step in the Right Direction,” University of Chicago Legal Forum: Vol. 2004: Iss. 1, Article 11. Available Here, accessed on 24 August 2021.

[7] Etman M, ‘The ALI Principles’ Approach to Domestic Partnership’ (scholarship. Law. duke, 2001) Available Here, accessed 24 August 2021.

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