Table of Contents - Marvin v. Marvin

Table of Contents – Marvin v.
Marvin
Enhanced Case Summary

Notable Case Analysis: Editorial reasoning why this case is important and what the court added or changed about the law
Enhanced Procedural Posture: The underlying procedural posture discussed in greater detail
Explanation of Parties: Identifies the parties and describes their roles and relationships.
Parties’ Arguments: Includes a description of the arguments regarding significant issues
Quick Holding Bullets: Short statements of the court’s holdings in this case
Enhanced Overview: Detailed overview of facts, rationale, and holdings in bulleted, topical breakdown
Dissenting/Concurring Opinion Overview: Summary of any concurring or dissenting opinions
Expanded Headnote Coverage
LexisNexis Headnotes: Existing headnotes provided for ease of comparison with Interpretive Headnotes
Interpretive Headnotes: Additional headnotes requiring editorial refinement to provide concise statements of legal points
Jurisprudential Analysis
Status of the Case: Discussion of prior and subsequent opinions involving the case
Comparative Case Content: Topical research and information about cases that have major holdings in the relevant area of law
Legal Analysis
Related Treatise Content: Summary of several prominent treatises on the subject
Related Restatements and/or Model Codes: Summary of the relevant sections of the restatement or model code
Related Law Review Articles: Summary of several prominent law review articles related to the case or its subject matter
Related Bar Association & Journal Articles: Summary of prominent bar association journal articles related to the subject
Other Legal Articles: Legal articles written by attorneys/law firms related to the case
Related Statutory Annotations: List of most related annotations, providing the most relevant cases interpreting the applicable statutes
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Recent News Coverage of the Issue: Excerpts from several articles covering the issues
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Case Text
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Case in Brief: Marvin v. Marvin
Enhanced Case Summary
Notable Case Analysis
There has been a substantial increase in the number of couples living together without marrying. Such nonmarital relationships
lead to legal controversy when one partner dies or the couple separates. Marvin v. Marvin declared the principles that governed
distribution of property acquired in a nonmarital relationship. As a result of the Marvin decision, it is generally recognized that
nonmarital partners may enter into agreements ordering their economic affairs any way they choose.
The California Supreme Court in Marvin v. Marvin indirectly sanctioned the enforcement of cohabitation agreements and equitable
remedies between both homosexual and heterosexual couples. Since the decision in the Marvin case, the Family Code has been
amended to include provisions concerning the registration by nonmarital partners of their domestic partnerships, and these
provisions include references to parties' making enforceable agreements that impose joint responsibility for one another's basic
living expenses. Accordingly, while Marvin's conclusion that the parties' rights are not governed by the Family Code remains
essentially correct, the Family Code provisions concerning the effects of domestic partner establishment and registration must be
taken into account.
Enhanced Procedural Posture
Plaintiff female cohabitant sued defendant male cohabitant to obtain one-half of the property accumulated during their seven year
nonmarried relationship and support payments. Plaintiff sought declaratory relief under contract and property law and sought to
impose a constructive trust upon one-half of the property.
The Superior Court of Los Angeles County (California) rendered judgment for defendant o the pleadings, thus leaving defendant
with all property accumulated by the couple.
Plaintiff filed a motion to set aside the judgment and also sought leave to amend her complaint to allege that the oral agreement
was reaffirmed after defendant’s divorce was final. They continued to live together for over three years after defendant’s divorce.
The trial court denied plaintiff’s motions, and she appealed.
Explanation of Parties
Plaintiff-appellant female cohabitant -- Michelle Marvin
Case in Brief Page 1

Michelle Marvin lived in Lee Marvin’s house as a homemaker and companion for seven years. They did not marry. Upon
the termination of their relationship, she sought support and half of the property acquired during their relationship.
Defendant-respondent male cohabitant -- Lee Marvin
Lee Marvin was estranged from his first wife and lived with Michelle Marvin for seven years. He had a lucrative acting
career in Hollywood, California.
Parties’ Arguments
I. Plaintiff female cohabitant alleged that her complaint stated a cause of action for breach of an express contract. The
trial court erred in denying her a trial on the merits.
Nonmarital partners may lawfully contract concerning the ownership of property acquired during the relationship. Link P.
Arg.▼
Holding: The Court held that a promise to perform homemaking services is a lawful and adequate consideration for a
contract. Link P. Arg.▼ Moreover, the Court would enforce contracts between nonmarital partners unless expressly
and inseparately based upon an illicit consideration of sexual services. Link P. Arg.▼
The Court provided a practical guide to determine when an agreement between nonmarital partners should be
enforced. Link P. Arg.▼
II. Defendant male cohabitant argued that any contract would be unenforceable because of the immoral character of the
parties’ relationship. Defendant argued that the judgment should be sustained.
Enforcement of the alleged contract would violate public policy. Link P. Arg.▼
Enforcement of the alleged contract would promote or encourage divorce. Link P. Arg.▼
Holding: The Court held that a contract between nonmarital partners was unenforceable only to the extent that it
explicitly rested upon the immoral and illicit consideration of meretricious sexual services. Link P. Arg.▼
The Court found that enforcement of the contract between the parties would not impair any community property right
of defendant’s ex-wife. Link P. Arg.▼
III. Plaintiff female cohabitant alleged that her complaint stated a cause of action for breach of an implied contract. The
trial court erred in denying equitable relief.

Plaintiff contended that she was entitled to relief independent of the contract and that the law should carry out the reasonable
expectations of the parties. The fact that a couple have not participated in a valid marriage ceremony should not serve as a
basis for a court’s inference that the couple intend to keep their earnings and property separate. Link P. Arg.▼
Holding: The Court held that plaintiff’s complaint could be amended to state a cause of action independent of
allegations of express contract. Courts can inquire into the conduct of the parties to determine whether their conduct
demonstrated an implied contract, implied agreement of partnership or joint venture, or other tacit understanding.
Link P. Arg.▼
Quick Holding Bullets
• Agreements between nonmarital partners fail only to the extent that they rest upon a consideration of meretricious sexual
services. Thus the rule asserted by defendant, that a contract fails if it is "involved in" or made "in contemplation" of a
nonmarital relationship, cannot be reconciled with the decisions. Link Quick Holding▼
• Enforcement of the contract between plaintiff and defendant against property awarded to defendant by the divorce decree will
not impair any right of defendant’s ex-wife, and thus is not on that account violative of public policy. Link Quick Holding▼
• Adults who Link Quick Holding▼ voluntarily live together and engage in sexual relations are nonetheless as competent as
any other persons to
• contract respecting their earnings and property rights. Of course, they cannot lawfully contract to pay for the performance of
sexual services, for such a contract is, in essence, an agreement for prostitution and unlawful for that reason. But they may
agree to pool their earnings and to hold all property acquired during the relationship in accord with the law governing
community property; conversely they may agree that each partner's earnings and the property acquired from those earnings
remains the separate property of the earning partner. 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.
• The court concludes that the complaint furnishes a suitable basis upon which the trial court can render declaratory relief. (See
The trial court consequently erred in granting defendant's motion for judgment on the pleadings. Link Quick Holding▼
• The mere fact that a couple have not participated in a valid marriage ceremony cannot serve as a basis for a court's inference
that the couple intend to keep their earnings and property separate and independent; the parties' intention can only be
ascertained by a more searching inquiry into the nature of their relationship. Link Quick Holding▼

• The courts may inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract or
implied agreement of partnership or joint venture, or some other tacit understanding between the parties. The courts may,
when appropriate, employ principles of constructive trust or resulting trust. Finally, a nonmarital partner may recover in
quantum meruit for the reasonable value of household services rendered less the reasonable value of support received if he
can show that he rendered services with the expectation of monetary reward. Link Quick Holding▼
• Since the court has determined that plaintiff's complaint states a cause of action for breach of an express contract, and, as the
court has explained, can be amended to state a cause of action independent of allegations of express contract, the court must
conclude that the trial court erred in granting defendant a judgment on the pleadings. Link Quick Holding▼
Enhanced Overview
I. Facts
Plaintiff female cohabitant and defendant male cohabitant lived together for seven years without marrying. Plaintiff averred that
in October of 1964, they entered into an oral agreement to combine their efforts and to share equally all earnings and property
accumulated. Plaintiff agreed to give up a lucrative career as a singer and entertainer to devote herself to defendant as a
companion and homemaker. All property acquired during the seven-year period was taken in defendant’s name. In May of 1970,
defendant compelled plaintiff to leave his household and refused to support her after November of 1971. Another marriage of
defendant had not officially terminated until January 1967.
Plaintiff sued to enforce a contract under which she was entitled to half the property and to support payments.
II. Superior Court of Los Angeles County
Plaintiff sought declaratory relief under contract and property rights and sought to impose a constructive trust upon one-half of
the property acquired during the course of the relationship.
The trial court rendered judgment for defendant on the pleadings, denying a trial to plaintiff on the merits. Defendant thus was
granted all of the property accumulated by the couple during their relationship.
Plaintiff filed a motion to set aside the judgment and asked for leave to amend her complaint to allege that the oral agreement
was reaffirmed after defendant’s divorce was final. The trial court denied the motion. Plaintiff appealed.
III. Supreme Court of California

The Supreme Court of California reversed, finding that plaintiff’s complaint stated a cause of action for breach of an express
contract and could be amended to state a cause of action independent of express contract. In so ruling, the Supreme Court of
California resolved a controversy in the courts of appeal.
A. The court held that the provisions of the Family Law Act, Cal. Civ. Code § 400 Shepardize et seq., did not govern the
distribution of property acquired during a nonmarital relationship. A nonmarital relationship remained subject solely
to judicial decision.
The mere fact that a couple did not participate in a valid marriage ceremony could not serve as a basis for a court's
inference that the couple intended to keep their earnings and property separate and independent. The parties'
intention could only be ascertained by a more searching inquiry into the nature of their relationship.
B. The courts should enforce express contracts between nonmarital partners, except to the extent that the contract
was explicitly founded on the consideration of meretricious sexual services.
Unmarried parties could enter into a lawful agreement with each other, so long as an immoral relation was not made
a consideration of their agreement. A promise to perform homemaking services was a lawful and adequate
consideration for a contract. Even if sexual services were part of the contractual consideration, any severable
portion of the contract supported by independent consideration would still be enforced.
Nonmarital partners could make the following valid and enforceable agreements: (1) to pool their earnings and hold
all property acquired during the relationship in accord with the law governing community property; (2) to keep each
partner's earnings and the property acquired from those earnings as the separate property of the earning partner;
(3) to keep their earnings and property separate, but to compensate one party for services that benefit the other
party; (4) to pool only part of their earnings or property; (5) To form a partnership or joint venture; (6) to own
property as joint tenants or tenants in common; or (7) to establish any other such arrangement.
C. In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether
that conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit
understanding between the parties. The courts may also employ the doctrine of quantum meruit, or equitable
remedies such as constructive or resulting trusts, when warranted by the facts of the case.
Dissenting/Concurring Opinion Overview
Dissenting/Concurring Opinion by Judge Clark
Link Concur/Dissent▼ The majority properly permitted recovery on the basis of either express or implied in fact agreements.
However, this court should not attempt to determine all anticipated rights, duties, and remedies within every meretricious

relationship. These complex issues should be determined as each case arises. In the absence of an agreement, courts should not
create economic obligations.
Expanded Headnote Coverage
LexisNexis Headnotes
[HN1] The provisions of the Family Law Act, Cal. Civ. Code § 4000 Shepardize et seq., do not govern the distribution of property
acquired during a nonmarital relationship. Such a relationship remains subject solely to judicial decision.
[HN2] Courts should enforce express contracts between nonmarital partners except to the extent that the contract is explicitly
founded on the consideration of meretricious sexual services.
[HN3] In the absence of an express contract, the courts should inquire into the conduct of the parties to determine whether that
conduct demonstrates an implied contract, agreement of partnership or joint venture, or some other tacit understanding between
the parties. The courts may also employ the doctrine of quantum meruit, or equitable remedies such as constructive or resulting
trusts, when warranted by the facts of the case.
[HN4] If the trial court rendered judgment for defendant on the pleadings, the reviewing court must accept the allegations of
plaintiff's complaint as true, determining whether such allegations state, or can be amended to state, a cause of action.
[HN5] It is not error for a trial court to deny a plaintiff's motion, made on the opening day set for trial, seeking leave to file a
proposed amended complaint. If such motion is granted, it will require a long continuance for the purpose of canvassing wholly
new factual issues, a redoing of the elaborate discovery procedures previously had, all of which will impose upon defendant and
his witnesses substantial inconvenience, and upon defendant needless and substantial additional expense. In such
circumstances, the court does not err in denying leave to file a proposed amended complaint.
[HN6] The ruling of the trial judge will not be disturbed upon appeal absent a showing by appellant of a clear abuse of discretion.
[HN7] Nonmarital partners may lawfully contract concerning the ownership of property acquired during the relationship. If a man
and 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.
[HN8] A contract between nonmarital partners is unenforceable only to the extent that it explicitly rests upon the immoral and illicit
consideration of meretricious sexual services.
[HN9] The numerous cases discussing the contractual rights of unmarried couples have drawn no distinction between illegal
relationships and lawful nonmarital relationships.

[HN10] The fact that the parties agree to invest their earnings in property to be held jointly between them were living together in an
unlawful relation, does not disqualify them from entering into a lawful agreement with each other, so long as such immoral relation
was not made a consideration of their agreement.
[HN11] The mere fact that parties agree to live together in meretricious relationship does not necessarily make an agreement for
disposition of property between them invalid. It is only when the property agreement is made in connection with the other
agreement, or the illicit relationship is made a consideration of the property agreement, that the latter becomes illegal.
[HN12] No case suggests that a pooling agreement in which one partner contributes only homemaking services is invalid. A
promise to perform homemaking services is a lawful and adequate consideration for a contract.
Shepardize
[HN13] The alternative holding in Heaps v. Toy, 128 P.2d 813 (Cal. Ct. App. 1942), finding the contract in that case
contrary to good morals, is inconsistent with the numerous California decisions upholding contracts between nonmarital partners
when such contracts are not founded upon an illicit consideration, and is therefore disapproved.
[HN14] A contract between nonmarital partners, even if expressly made in contemplation of a common living arrangement, is
invalid only if sexual acts form an inseparable part of the consideration for the agreement. In sum, a court will not enforce a
contract for the pooling of property and earnings if it is explicitly and inseparably based upon services as a paramour. However,
even if sexual services are part of the contractual consideration, any severable portion of the contract supported by independent
consideration will still be enforced.
[HN15] An improper transfer of community property is not void ab initio, but merely voidable at the instance of the aggrieved
spouse.
[HN16] The earnings and accumulations of both spouses while living separate and apart from the other spouse, are the separate
property of the spouse.
[HN17] Enforcement of the contract between an unmarried plaintiff and a divorced defendant against property awarded to
defendant by the divorce decree will not impair any right of the aggrieved spouse. Thus, such agreement is not on that account
violative of public policy.
Shepardize
[HN18] See Cal. Civ. Code § 5134.
[HN19] A marriage settlement is an agreement in contemplation of marriage in which each party agrees to release or modify the
property rights which would otherwise arise from the marriage. A contract between cohabitants does not conceivably fall within
that definition, and thus is beyond the compass of the state statute of frauds, Cal. Civ. Code § 5134. Shepardize

[HN20] Since the majority of agreements between nonmarital partners are oral, the court expressly rejects defenses grounded
upon the statute of frauds.
[HN21] Adults who voluntarily live together and engage in sexual relations are nonetheless as competent as any other persons to
contract respecting their earnings and property rights. Of course, they cannot lawfully contract to pay for the performance of
sexual services, for such a contract is, in essence, an agreement for prostitution and unlawful for that reason. But they may agree
to pool their earnings and to hold all property acquired during the relationship in accord with the law governing community
property; conversely they may agree that each partner's earnings and the property acquired from those earnings remains the
separate property of the earning partner. n10 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.
Shepardize
[HN22] In view of the policy of the Family Law Act, Cal. Civ. Code § 400 et seq., property accumulated by nonmarital
partners in an actual family relationship should be divided equally.
[HN23] The mere fact that a couple have not participated in a valid marriage ceremony cannot serve as a basis for a court's
inference that the couple intend to keep their earnings and property separate and independent; the parties' intention can only be
ascertained by a more searching inquiry into the nature of their relationship.
[HN24] Despite agreeing that a nonmarital "wife" could not claim her partner's estate as community property, the court allows a
woman living with a man as his wife but with no genuine belief she is legally married to him to acquire the rights of a co-tenant in
his earnings and accumulations during the period of their relationship, but not by reason of cohabitation alone. If equitable
considerations arising from the reasonable expectation of the continuation of benefits attending the status of marriage entered into
in good faith are present, the court will allow the nonmarital partner to prevail on such a claim. In the absence of express contract,
the nonmarital partner is entitled to share in property jointly accumulated beyond the proportion that her funds contributed toward
its acquisition if she can prove an implied contract.
Shepardize
[HN25] The Family Law Act, Cal. Civ. Code § 4452 , classifies property acquired during a putative marriage as "quasi-
marital property," and requires that such property be divided upon dissolution of the marriage in accord with Cal. Civ. Code §
4800. Shepardize
[HN26] The putative spouse need not prove that he rendered services in expectation of monetary reward in order to recover the
reasonable value of those services.
[HN27] Contracts may be express or implied. However, these terms do not denote different kinds of contracts, but have reference
to the evidence by which the agreement between the parties is shown. If the agreement is shown by the direct words of the
parties, spoken or written, the contract is said to be an express one. But if such agreement can only be shown by the acts and
conduct of the parties, interpreted in the light of the subject matter and of the surrounding circumstances, then the contract is an

implied one. In a sense, all contracts made in fact, as distinguished from quasi-contractual obligations, are express contracts,
differing only in the manner in which the assent of the parties is expressed and proved.
[HN28] If an express agreement will be enforced, then there is no legal or just reason why an implied agreement to share the
property cannot be enforced. If the man and woman were not illegally living together, then it would be a plain business relationship
and a contract would be implied.
[HN29] Even if it is correct that a "guilty" putative spouse has a right to one-half of the marital property, it does not necessarily
follow that a nonmarital partner has an identical right. In a putative marriage, the parties will arrange their economic affairs with the
expectation that upon dissolution the property will be divided equally. If a "guilty" putative spouse receives one-half of the property
under Cal. Civ. Code § 4452 Shepardize , no expectation of the "innocent" spouse has been frustrated. In a nonmarital relationship,
on the other hand, the parties may expressly or tacitly determine to order their economic relationship in some other manner, and
to impose community property principles regardless of such understanding may frustrate the parties' expectations.
[HN30] The Family Law Act, Cal. Civ. Code § 4000 Shepardize et seq., does not require an equal division of property accumulated in
nonmarital actual family relationships.
[HN31] Concepts of "guilt" cannot justify an unequal division of property between two equally "guilty" persons who cohabited
together.
[HN32] In a nonmarital relationship, there is no more reason to presume that services are contributed as a gift than to presume
that funds are contributed as a gift. In any event, the better approach is to presume that the parties intend to deal fairly with each
other.
[HN33] In the absence of an express agreement, the courts may look to a variety of other remedies in order to protect the parties'
lawful expectations.
[HN34] The court does not seek to resurrect the doctrine of common law marriage, which was abolished in California by statute in
1895.
[HN35] An unmarried cohabitant has the same rights to enforce contracts and to assert her equitable interest in property acquired
through her effort as does any other unmarried person.
[HN36] Courts may inquire into the conduct of the parties to determine whether that conduct demonstrates an implied contract or
implied agreement of partnership or joint venture, or some other tacit understanding between the parties. The courts may, when
appropriate, employ principles of constructive trust or resulting trust. Finally, a nonmarital partner may recover in quantum meruit
for the reasonable value of household services rendered less the reasonable value of support received if the nonmarital partner
can show that he rendered services with the expectation of monetary reward.

Interpretive Headnotes
[IHN1] Link Int. HN▼ The fact that a man and woman live together without marriage, and engage in a sexual relationship, does
not 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 or continuation of a nonmarital relationship when they
entered into it. Agreements between nonmarital partners fail only to the extent that they rest upon a consideration of meretricious
sexual services. Thus the rule asserted by defendant, that a contract fails if it is "involved in" or made "in contemplation" of a
nonmarital relationship, cannot be reconciled with the decisions.
[IHN2] Link Int. HN▼ A great variety of cohabitation arrangements are possible. The parties might keep their earnings and
property separate, but agree to compensate one party for services which benefit the other. They may choose to pool only part of
their earnings and property, to form a partnership or joint venture, or to hold property acquired as joint tenants or tenants in
common, or agree to any other such arrangement.
Jurisprudential Analysis
Status of the Case
Prior History
Marvin v. Marvin, Superior Court of Los Angeles County, No. C-23303, William A. Munnell, Judge
Plaintiff female cohabitant sued defendant male cohabitant for one-half of the property and assets acquired by the couple
during their seven-year relationship. She sought declaratory relief under property and contract law and the imposition of a
constructive trust. The trial court granted defendant’s motion for judgment on the pleadings.
Comparative Case Content
Topic: Protection of the expectations of cohabitants in a nonmarital relationship
Holding that equitable remedies were available

Shepardize
Poe v. Estate of Levy, 411 So. 2d 253 (Fla. 4th DCA 1982)
OVERVIEW: An alleged contract to provide for the parties' mutual support and sharing of property was not
contrary to public policy in Florida just because the parties were living together, if it was supported by
consideration other than sexual intercourse.

Glasgo v. Glasgo, 410 N.E.2d 1325 Shepardize (Ind. Ct. App. 1980)
OVERVIEW: Denial of ex-husband's motion to dismiss ex-wife's suit was proper because presumption that ex-
wife rendered services voluntarily did not exist when substantial evidence supported an express agreement to the
contrary.
Collins v. Davis, 68 N.C. App. 588 Shepardize (N.C. Ct. App. 1984)
OVERVIEW: The fact that the lender was living with the borrower, a woman who was not his wife, at the time that
the lender provided the borrower with funds, did not, by itself, render their implied contract unenforceable.
Watts v. Watts, 137 Wis. 2d 506 Shepardize (Wis. 1987)
OVERVIEW: Judgment dismissing female cohabitant's suit against male cohabitant was properly reversed
because female cohabitant stated a claim upon which relief could be granted that could rest upon a breach of
contract, unjust enrichment, or partition theory.
Holding that express contracts were enforceable, as long as the contract was not founded on sexual relations
Kozlowski v. Kozlowski, 80 N.J. 378 Shepardize (N.J. 1979)
OVERVIEW: Where a man and woman entered into a contract and the promise to marry was not fulfilled, the
court could enforce the contract even though it contained language evident of a non-marital sexual relationship.
Cook v. Cook, 142 Ariz. 573 Shepardize (Ariz. 1984)
OVERVIEW: Where a cohabiting couple separated, regardless of the meretricious nature of the relationship, one
party was entitled to seek an accounting from the other as to funds the parties had agreed to contribute to a pool
of income and to share equally.
Boland v. Catalano, 202 Conn. 333 Shepardize (Conn. 1987)
OVERVIEW: Public policy did not prevent enforcement of implied-in-fact agreement regarding property rights
between unmarried cohabitants in a sexual relationship.
Kinkenon v. Hue, 207 Neb. 698 Shepardize (Neb. 1981)

OVERVIEW: A woman was entitled to recover the value of a life estate in a man's home because she proved the
existence of an express agreement whereby she agreed to perform personal services in exchange for his promise
to provide for her future security.
Hay v. Hay, 100 Nev. 196 Shepardize (Nev. 1984)
OVERVIEW: Nevada did not recognize common law marriage but it did not allow one party to a meretricious
relationship to take the bulk of the couple's property upon the dissolution of the relationship. The community
property laws of the state applied.
Dominguez v. Cruz, 95 N.M. 1 Shepardize (N.M. Ct. App. 1980)
OVERVIEW: In action by cohabitant against life partner, the parties' property was properly divided. If an oral
contract could exist between business associates, one could exist between two unmarried cohabiting adults if the
elements of a contract were present.
Morone v. Morone, 50 N.Y.2d 481 Shepardize (N.Y. 1980)
OVERVIEW: Unmarried female's action for compensation for services rendered during cohabitation was
dismissed because a contract as to earnings or assets may not be implied in fact from the relationship of an
unmarried couple that have been living together.
Mullen v. Suchko, 279 Pa. Super. 499 Shepardize (Pa. Super. Ct. 1980)
OVERVIEW: Trial court erred in dismissing former girlfriend's complaint for assumpsit, trespass, and intentional
infliction of emotional distress against former boyfriend, but claim for intentional infliction of emotional distress
properly dismissed.
Latham v. Latham, 274 Ore. 421 Shepardize (Or. 1976)
OVERVIEW: The application by a trial court of the principle that a contract based on an agreement of
cohabitation would not be enforced resulted in males keeping assets accumulated and females being deprived of
joint property and was reversed.
Small v. Harper, 638 S.W.2d 24 Shepardize (Tex. App. 1982)
OVERVIEW: Lesbian partner was not entitled to summary judgment regarding division of her and her partner's
property because there were numerous issues of fact regarding the parties' business affairs.

Kinnison v. Kinnison, 627 P.2d 594 Shepardize (Wyo. 1981)
OVERVIEW: In a complaint asking for an accounting and claiming an interest in property acquired during
cohabitation, plaintiff, an unmarried cohabitant, was entitled to enforcement of oral settlement of her claims for
quantum meruit and unjust enrichment.
Sopko v. Slackman (in Re Estate of Roccamonte), 174 N.J. 381 Shepardize (N.J. 2002)
OVERVIEW: The palimony claim of a New Jersey woman who lived with a married man in a marital-type
relationship in reliance on his promise to provide for her for life was enforceable against his estate after he died
intestate.
Holding that any severable portion of the express contract supported by independent consideration was
enforceable even if sexual services were part of the contractual consideration
Whorton v. Dillingham, 202 Cal. App. 3d 447 Shepardize (Cal. Ct. App. 1988)
OVERVIEW: Plaintiff's claims that he served as a chauffeur, business partner, bodyguard and secretary for
defendant during the term of the parties cohabitation agreement was sufficient independent consideration to state
a breach of contract claim.
Della Zoppa v. Della Zoppa, 86 Cal. App. 4th 1144 Shepardize (Cal. Ct. App. 2001)
OVERVIEW: Premarital, Marvin-type agreement was not unenforceable as "meretricious" simply because it
included desire for children. Holding property jointly and other topics were covered, and relationship was not like
prostitution.
Holding that palimony was not a recognized cause of action in Rhode Island
Norton v. McOsker, 407 F.3d 501 Shepardize (1st Cir. 2005)
OVERVIEW: Where appellant and the husband of another woman had a long-term adulterous relationship, the
husband's promise to support appellant was too vague to be enforceable and appellant could not justifiably rely
on the promise, and terminating the extramarital affair did not support a claim for intentional infliction of emotional
distress.

Holding that unmarried cohabitants could lawfully contract concerning property, financial, and other matters
relevant to their relationship
Wilcox v. Trautz, 427 Mass. 326, 332 Shepardize (Mass. 1998)
OVERVIEW: The written agreement between male cohabitant and female cohabitant was valid and enforceable
because sexual services did not constitute the only, or dominant, consideration for the agreement, nor did it
violate other public policy concerns.
Holding that the imposition of a constructive trust was justified to prevent unjust enrichment
In re Estate of Eriksen, 337 N.W.2d 671 Shepardize (Minn. 1983)
OVERVIEW: The finding that the girlfriend had a one-half interest in the house was proper because the sexual
relationship between the girlfriend and the boyfriend did not provide the sole consideration for their agreement.
Holding that agreements between nonmarital cohabitants regarding property and financial arrangements that
were not in writing were unenforceable
In re Estate of Palmen, 588 N.W.2d 493 Shepardize (Minn. 1999)
OVERVIEW: A claim seeking to recover the value of direct contributions to the construction of a log cabin, not to
recover the value of general contributions appellant made to an out-of-wedlock relationship, was not barred by
statutes.
Zaremba v. Cliburn, 949 S.W.2d 822 Shepardize (Tex. App. 1997)
OVERVIEW: Statute of frauds barred appellant partner's claims for recovery under all causes of action that
alleged he was entitled to recover for services rendered in consideration of nonmarital, conjugal cohabitation with
appellee partner.
Legal Analysis
Related Treatise Content
California Civil Discovery § 12.17 Marriage Requirement

Cohabitation without any ceremonial marriage cannot be the basis for claiming the marital privilege. California does not
recognize a common law marriage.
1-10 California Community Property with Tax Analysis § 10.01 Cohabitation Agreements, Legal Recognition of Cohabitation
This provision discusses the recognition by the California Supreme Court and legislature of the widespread existence of
relationships in which couples choose to live together without marriage. Domestic partners can register with a local city or
county clerk and can file a Declaration of Domestic Partnership with the Secretary of State. A registered domestic
partnership may be terminated without filing a proceeding for dissolution of domestic partnership, by the filing of a Notice
of Termination of Domestic Partnership with the Secretary of State.
1-10 California Community Property with Tax Analysis § 10.02 Cohabitation Agreements, Family Code Not Applicable
The former Family Law Act, Former Cal. Civ. Code §§ 4000-5183, does not govern the distribution of property acquired
during a nonmarital relationship, except as provided with respect to persons who have registered with the Secretary of
State as domestic partners. Since the decision in the Marvin case, the Family Code has been amended to include
provisions concerning the registration by nonmarital partners of their domestic partnerships, and these provisions include
for this purpose references to parties' making enforceable agreements that impose ''joint responsibility'' for one another's
''basic living expenses.''
1-10 California Community Property with Tax Analysis § 10.03 Cohabitation Agreements, Types of Cohabitation Agreements
Unmarried partners may make express agreements or agreements may be implied from certain conduct. An express
contract is shown by the direct spoken or written words of the parties, whereas an implied contract is shown by parties'
acts and conduct as interpreted in light of the subject matter and the surrounding circumstances. In addition to recovery
based on contract, a court may impose certain equitable remedies to fulfill the parties' reasonable expectations.
1-10 California Community Property with Tax Analysis § 10.05 Cohabitation Agreements, Express Contracts
Because a court will enforce property rights between cohabitants under an implied contract or by imposing equitable
remedies in certain circumstances when there is no express contract, cohabitants may find it advisable to execute an
express, written contract to avoid a court's division of property in a manner that they did not intend. This provision supplies
reasons for executing a written agreement.
1-10 California Community Property with Tax Analysis § 10.06 Cohabitation Agreements, Permissible Subjects of Express
Contract

This section states that nonmarital partners can make the following valid and enforceable agreements: (1) to pool their
earnings and hold all property acquired during the relationship in accord with the law governing community property; (2) to
keep each partner's earnings and the property acquired from those earnings as the separate property of the earning
partner; (3) to keep their earnings and property separate, but to compensate one party for services that benefit the other
party; (4) to pool only part of their earnings or property; (5) to form a partnership or joint venture; (6) to own property as
joint tenants or tenants in common; or (7) to establish any other such arrangement.
1-1 California Family Law Prac & Proc 2d ed. § 1.02 Legal Recognition of Cohabitation
The California Supreme Court has noted the following examples of persons who may choose to live together without
marriage: persons who make a deliberate decision to avoid the strictures of the community property system by not getting
married; persons who fear the loss of pension, welfare, or tax benefits that may be occasioned by marriage; couples who
would like to try living together on an experimental basis as a prelude to marriage; persons who cannot spare the time or
money required to dissolve a former marriage; persons who erroneously believe that the doctrine of common-law
marriage prevails in California and that merely by living together they can become legally married.
1-2 California Family Law Prac & Proc 2d ed. § 2.02 Types of Enforceable Express Agreements
An agreement between nonmarital partners regarding property, earnings, and expenses may legitimately be coupled with
a support agreement that extends even after the end of the relationship. The parties may also include in an express
agreement a provision with respect to the payment of costs and attorney's fees in the event of litigation. However, a
California court must at least have limited personal jurisdiction over the defendant.
6-200 California Family Law Prac & Proc 2d ed. § 200.02 Drafting Considerations, Validity and Purpose of Nonmarital
Cohabitation Agreements
Nonmarital partners in California may lawfully contract to pool earnings and funds. This provision discusses property-
related and support-related provisions of a valid cohabitation agreement.
6-201 California Family Law Prac & Proc 2d ed. § 201.10 Essential Contractual Elements for Premarital Agreement
This provision discusses the formal requirements for enforceable agreements including contractual capacity, consent,
voluntariness and unconscionability, validity of waiver of property rights, advisability of independent counsel, a lawful
object, and consideration. The provision provides practice tips for drafting premarital agreements and cohabitation
agreements.
15-79 Corbin on Contracts § 79.3 Defining Public Policy

This provision discusses the difficulty of defining public policy and suggests a factor-balancing analysis, considering
consider the expectations of the parties, the forfeiture that would result from nonenforcement, any public interest in
enforcing a contract provision, the strength of the policy against enforcement, whether nonenforcement will further that
policy, the seriousness and deliberateness of the misconduct, and the closeness of the connection between the
misconduct and the contract provision.
1-41 Family Law and Practice § 41.07 Tax Problems of Property Transfers by Domestic Partners
With the rise in same-sex and opposite-sex domestic cohabitation arrangements, courts must consider competing claims
to property accumulated during cohabitation and to claims for support payments after domestic partners break up. This
provision examines the federal tax consequences of property transfers between domestic partners.
2-18 MB Practice Guide: CA Contract Litigation 18.03 Checklist: Asserting or Defending Claim of Illegality of Contract or Contract
Provision
This checklist advises to evaluate whether a contract or term falls within recurring categories of cases in which illegality
has been identified. If so, determine if contract contemplates or condones illegal activity. If an agreement contains
cohabitation agreement, decide if it is expressly based on illicit consideration. This checklist provides authority and
discussion points.
2-42 Valuation and Distribution of Marital Property § 42.40
This section discusses the income tax consequences of property settlements by former cohabitants. A transferor cannot
deduct such payments and will realize gain or loss on property transfers. The recipient must include both support
payments and property transfers in income unless they can be excluded as gifts.
47-28 USC Law School Institutes On Major Tax Planning P 2809
This provision discusses tax benefits and risks for heterosexual couples who desire to maximize economic benefits and
minimize transfer taxes. Cohabitation, domestic partner registration, and adult adoption is examined as alternatives.
Related Restatements and/or Model Codes
Restat 2d of Contracts, § 19 Conduct as Manifestation of Assent
Conduct may often convey as clearly as words a promise or an assent to a proposed promise. There must be a
manifestation of assent. Marvin v. Marvin is given as an example of contracts in domestic relations.

Restat 2d of Contracts, § 124 Contract Made Upon Consideration of Marriage
A promise for which all or part of the consideration is either marriage or a promise to marry is generally within the Statute
of Frauds. This marriage provision is, of course, not literally applicable to oral agreements made in contemplation of
parties living together in a nonmarital relationship.
Restat 2d of Contracts, § 179 Bases of Public Policies against Enforcement
A public policy against the enforcement of promises or other terms may be derived by the court from legislation relevant to
such a policy, or the need to protect some aspect of the public welfare, as is the case for the judicial policies. Marvin v.
Marvin is cited as an example of a case in which courts discarded public policies as obsolete.
Restat 2d of Contracts, § 189 Promise in Restraint of Marriage
A promise is unenforceable on grounds of public policy if it is unreasonably in restraint of marriage. Marvin v. Marvin is
cited as an example of the enforceability of agreements between partners to a nonmarital sexual relationship
Restat 2d of Prop: Donative Transfers, § 6.1 Restraints on Any First Marriage
An otherwise effective restriction in a donative transfer which is designed to prevent the acquisition or retention of an
interest in property by the transferee in the event of any first marriage of the transferee is invalid. Marvin v. Marvin is cited
as an example that public policy may no longer strongly oppose cohabitation without marriage.
Related Law Review Articles
Ariela R. Dubler, Immoral Purposes: Marriage and the Genus of Illicit Sex, 115 Yale L.J. 756 Shepardize (2006).
The author discusses the line between licit and illicit sexual expression and examines contemporary regulation of intimate
behavior. In a post-Marvin v. Marvin era of palimony and contracts for cohabitation, sex outside marriage can no longer be
labeled illicit in a simple sense.
Judith T. Younger, Lovers' Contracts in the Courts: Forsaking the Minimum Decencies, 13 Wm. & Mary J. of Women & L. 349
Shepardize
(Winter 2007).
This article focuses on disputes over the enforcement of premarital, postmarital, and cohabitation agreements. The author
argues that those contracts, which leave dependent spouses on welfare or fail to provide for reasonable support for
homemaker spouses, are unconscionable as a matter of law and therefore unenforceable.

Charlotte K. Goldberg, The Schemes of Adventuresses: The Abolition and Revival of Common-Law Marriage, 13 Wm. & Mary J.
of Women & L. 483 Shepardize (Winter 2007).
With the abolition in many states of the common law marriage doctrine, the problem of unmarried cohabitants seeking
property rights arising from their relationships still challenge the courts. Marvin v. Marvin reevaluated cohabitant rights. A
major determinative issue is whether cohabitants have an implied-in-fact agreement to share property.
Amanda J. Beane, Notes & Comments, One Step Forward, Two Steps Back: Vasquez v. Hawthorne Wrongly Denied
Washington's Meretricious Relationship Doctrine To Same-Sex Couples, 76 Wash. L. Rev. 475 Shepardize (Apr. 2001).
Washington's property-division scheme for unmarried couples is among the most progressive in the nation. The
meretricious relationship doctrine was created in 1984. This Note explains the property rights of married, unmarried, and
same-sex couples in Washington. The Note argues that "marital-like" should be defined by conduct and not by legal
status.
Emily Sherwin, Love, Money, and Justice: Restitution between Cohabitants, 77 U. Colo. L. Rev. 711 Shepardize (Spring 2006).
This article states that restitution claims by former cohabitants test the scope and meaning of the concept of unjust
enrichment. The article offers a general and theoretical assessment of particularistic legal decision-making in cases of
seeming unfairness in intimate relations and warns against the dangers of particularistic decision-making.
Kimberly Menashe Glassman , Note, Balancing the Demands of the Workplace with the Needs of the Modern Family: Expanding
Family and Medical Leave To Protect Domestic Partners, 37 U. Mich. J.L. Reform 837 Shepardize (Spring 2004).
Courts have begun to acknowledge that partners with emotional and economic interdependence, though unmarried, can
be in familial relationships. This article states that recognizing the functional family is good public policy. Many state and
local governments have enacted domestic partnership registries and permit second parent adoption.
Beverly Horsburgh, Redefining the Family: Recognizing the Altruistic Caretaker and the Importance of Relational Needs, 25 U.
Mich. J.L. Reform 423 Shepardize (Winter 1992).
This Article describes the general nonrecognition of altruism in the law with a focus on contract law, discussing cases
involving parties who cohabitate without formalizing their relationship in a marriage, and those who are not sexually
intimate but are nevertheless interrelated members of an extended family. The Article also comments on some of the
reasons for the law's reluctance to legitimize the nontraditional family and its inability to believe that altruism is a credible
explanation for the caretaker's conduct.

Marsha Garrison, Is Consent Necessary? An Evaluation of the Emerging Law of Cohabitant Obligation, 52 UCLA L. Rev. 815
Shepardize
(Feb. 2005).
This article argues that the private commitments of cohabitants can be honored through a revivified common law marriage
doctrine and some type of voluntary registration or marriage option for same-sex couples. Unjust enrichment can be
averted through traditional equitable remedies.
Grace Ganz Blumberg, Symposium, Legal Recognition of Same-Sex Conjugal Relationships: The 2003 California Domestic
Partner Rights and Responsibilities Act in Comparative Civil Rights and Family Law Perspective, 51 UCLA L. Rev. 1555 Shepardize
(Aug. 2004).
This Article describes the California Domestic Partner Rights and Responsibilities Act of 2003 and places it in national and
international context. This Act grants most of the state law incidents of marriage to same-sex couples registered as
domestic partners, thereby extending to registered same-sex couples the state law aspects of a protected legal status
historically restricted to opposite-sex married couples.
Daniel I. Weiner, Essay, The Uncertain Future of Marriage and the Alternatives, 16 UCLA Women's L.J. 97 Shepardize (Winter 2007).
The author comments that the law of marriage and coupling should align more closely with the reality of citizens' lives.
The essay explores no-fault divorce, contractual alternatives to heterosexual marriage, individual spouses preserving a
great deal more of their social and legal identities, and different conjugal status frameworks as alternatives to or
substitutes for baseline marriage.
Jennifer Tulin McGrath, The Ethical Responsibilities of Estate Planning Attorneys in the Representation of Non-Traditional
Couples, 27 Seattle Univ. L. R. 75 Shepardize (Summer 2003).
This article discusses estate planning for the non-traditional family. The interests of individual family members must be
accorded equal standing, as opposed to being forced into a traditional hierarchical framework. Women are equal partners
with men. This article provides an overview of the following estate planning issues faced by non-traditional couples: legal
recognition of the couple's relationship; asset planning; estate planning; and tax planning.
Elizabeth S. Scott, Marriage, Cohabitation and Collective Responsibility for Dependency, 2004 U Chi Legal F 225 Shepardize (2004).
Marriage no longer enjoys its former exclusive status as the core family form. Formal marriage is a privileged legal status
that receives substantial government protection and benefits, but this article asks whether the special legal status of
marriage can be justified any longer. The article argues that contract theory supports a default rule framework that
presumes that property acquired during long-term cohabitation unions is shared and that support is available to
dependent partners.

David Westfall, Unmarried Partners and the Legacy Of Marvin v. Marvin: Forcing Incidents of Marriage on Unmarried Cohabitants:
The American Law Institute's Principles of Family Dissolution, 76 Notre Dame L. Rev. 1467 Shepardize (Oct. 2001).
This article discusses the American Law Institute's Principles of the Law of Family Dissolution and examines the
responses of the courts and legislatures to Marvin v. Marvin.
David L. Chambers, Unmarried Partners and the Legacy of Marvin v. Marvin: For the Best of Friends and for Lovers of All Sorts, A
Status other than Marriage, 76 Notre Dame L. Rev. 1347 Shepardize (Oct. 2001).
This article traces the history of marriage and discusses new trends in cohabitation. Large numbers of single people,
viewed by the law as legally unattached, have another person in their lives whom they would most want to look after their
interests if they became incapacitated and whom they themselves would want to care for if the other became ill. New
familial statuses are developing in the law.
Edward A. Zelinsky, Deregulating Marriage: The Pro-Marriage Case for Abolishing Civil Marriage, 27 Cardozo L. Rev. 1161
Shepardize
(Jan. 2006).
This article argues that marriage should become solely a religious and cultural institution with no legal definition or status.
Under a deregulated marriage regime, such agreements would become the norm for all married couples. When couples
fail to contract, the law would provide the same default rules for married and unmarried couples alike. A legal regime
without a state-approved definition of marriage would entail changes to tax, pension, and inheritance rules, which today
rely upon state law definitions of marriage.
Related Bar Association & Journal Articles
Commissioner Robert A. Schnider, Family Law: The Increasing Involvement of the California Legislature, 25 Los Angeles Lawyer
48 Shepardize (Mar. 2002).
This article compares Marvin v. Marvin, 18 Cal. 3d 660 Shepardize , 134 Cal. Rptr. 815 Shepardize (1976), and In re Marriage of
Vomacka, 36 Cal. 3d 459 Shepardize , 204 Cal. Rptr. 568 Shepardize (1984). California tends to set the standard in emerging
family law issues.
Kitty Mak, Partners in Law, 24 Los Angeles Lawyer 35 Shepardize (July/Aug. 2001).
This article examines the Domestic Partnership Registration Act, which provides a legal basis for same-sex partners in life
relationships. Topics such as property, child custody, illness and death, and insurance are covered with links to relevant
provisions of the Act.

Peter L. Gladstone & Andrea E. Goldstein, Codifying Cohabitation as a Ground for Modification or Termination of Alimony -- So
What's New?, 80 Fla. Bar J. 45 Shepardize (Mar. 2006).
Cohabitation has long been recognized as a basis for seeking the modification and/or termination of an alimony obligation.
On June 10, 2005, a new post-divorce codification of the long-standing common law was enacted. F.S. § 61.14(b)
authorizes a court to reduce or terminate alimony upon finding that a supportive relationship has existed between the
obligee and a person with whom the obligee resides.
Kathleen Dolegowski, Common Law Marriage Presumption Still Viable in Pennsylvania: In Absence of Verba in Praesenti, Party
May Show Continuous Cohabitation and General Reputation of Marriage in Community, 2 Lawyers J. 3 Shepardize .
In In re: Estate of Inez O. Harris, Deceased, No. 0193 of 1999, filed September 20, 2000, the Register of Wills of
Allegheny County declared that a common law marriage had existed between a decedent and her “widower.” There was
evidence of constant cohabitation and general reputation of marriage in the community.
Paul Reidinger, Cohabitation Confers Property Rights, 72 A.B.A.J. 92 Shepardize (Oct. 1, 1986).
The Mississippi Supreme Court in Pickens v. Pickens has ruled that a couple who lived together for 20 years must divide
their jointly acquired property equitably even though they were never married during that long interval.
Other Legal Articles
George L. Blum, J.D., Property Rights Arising from Relationship of Couple Cohabiting without Marriage, 69 A.L.R.5th 219 Shepardize .
This annotation collects and analyzes those cases in which the courts have determined the rights of parties cohabiting
without marriage with respect to property accumulated or acquired during the period of cohabitation. This annotation
discusses only those cases in which the parties knowingly cohabitate without actually or allegedly entering into a marriage
of any sort.
Communication between Unmarried Couple Living Together as Privileged, 4 A.L.R.4th 422 Shepardize .
This annotation collects and analyzes state and federal cases determining whether communications between an
unmarried couple living together are privileged so that their confidential communications cannot be divulged by either
without the consent of the other.
Jane Massey Draper, B.C.L., Recovery for Services Rendered by Persons Living in Apparent Relation of Husband and Wife
Without Express Agreement for Compensation, 94 A.L.R.3d 552, sec. Shepardize 4.

This annotation collects and analyzes the cases in which the courts have considered whether recovery may be had for
services rendered by persons living in an apparent relation of husband and wife without express agreement for
compensation. Section 4 discusses meretricious relationships.
Wayne F. Foster, J.D., What Constitutes Contract between Husband or Wife and Third Person Promotive of Divorce or
Separation, 93 A.L.R.3d 523, sec 4. Shepardize .
This annotation collects and analyzes the cases determining what constitutes a contract between one spouse and a third
person which is unlawfully promotive of divorce or separation. Included are cases involving a marriage promise made by
one person already married which is challenged as promotive of a divorce or a separation in the existing marriage.
R. P. Davis, Rights and Remedies in Respect of Property Accumulated by Man and Woman Living Together in Illicit Relations or
under Void Marriage, 31 A.L.R.2d 1255 Shepardize .
This annotation discusses collects and analyzes cases where property was accumulated by the joint efforts or
expenditures of a man and woman one of whom, at least, believed the marriage to be valid when in fact it was not, as well
as cases where the cohabitation was to the knowledge of both parties illicit.
J. E. Keefe, Jr., Presumption as to Validity of Second Marriage, 14 A.L.R.2d 7 Shepardize .
A marriage, once being shown, is presumed to be valid. 35 Am Jur, Marriage § 192. This annotation examines whether
this presumption also applies to second or subsequent marriages.
Related Statutory Annotations
Cal Civ Code § 43.5 Shepardize Wrongs for which no cause of action arises
Breach of Promise of Marriage
Subdivision (d) abolishes actions for breach of express oral promise of support. Boyd v Boyd (1964) 228 CA2d 374
Shepardize
, 39 Cal Rptr 400 Shepardize , 1964 Cal App LEXIS 1092 Shepardize . Occurrence of marriage does not affect operation
of § 43.5(d). Boyd v Boyd (1964) 228 CA2d 374 Shepardize , 39 Cal Rptr 400 Shepardize , 1964 Cal App LEXIS 1092 Shepardize . In
action for breach of promise of marriage, where plaintiff lost assured income from independent sources in reliance on
violated promise, but had not availed herself of alternative remedies to recoup her loss, § 43.5(d) operated to bar her
action. Boyd v Boyd (1964) 228 CA2d 374 Shepardize , 39 Cal Rptr 400 Shepardize , 1964 Cal App LEXIS 1092 Shepardize .
Whether one makes promise "of marriage" or "to marry," he contracts not only to undergo marriage ritual but also to fulfill
matrimonial obligations and expectations, and latter are breached by postnuptial as well as antenuptial renunciation. Boyd

v Boyd (1964) 228 CA2d 374 Shepardize , 39 Cal Rptr 400 Shepardize , 1964 Cal App LEXIS 1092 Shepardize . CC § 43.5, providing
that no cause of action arises for breach of a promise of marriage, is not reasonably susceptible to the interpretation that
property pooling and support agreements between nonmarital partners, which are not part of or accompanied by promise
of marriage, are barred by the statute. Marvin v Marvin (1976) 18 C3d 660 Shepardize , 134 Cal Rptr 815 Shepardize , 557 P2d
106 Shepardize , 1976 Cal LEXIS 377 Shepardize . In an action by a husband against his wife for fraud and related causes of
action, based primarily on allegations that prior to marriage, the wife falsely represented that she loved and was sexually
attracted to the husband, and that he relied on the representations in marrying her and in putting certain property into joint
tenancy, the trial court erred in not dismissing the complaint, since most of it was substantively for breach of promise and
it was thus barred by California's "anti-heartbalm" statutes (CC §§ 43.4, 43.5). Any arguable remainder was beyond the
court's jurisdiction in light of an ongoing family law action. The fact of false representations, even fraudulent ones, is not
enough, by itself, to escape the anti-heartbalm statutes. Even if such representations as to love and sexual desire are
"fraudulently" false, they still substantively come under the rubric of the words "promise of marriage," or, more precisely,
"cohabitation after marriage" (CC § 43.4). Words of love, passion, and sexual desire are unsuited to the strictures of
common law fraud and deceit, and such suits are fundamentally incompatible with the statutory scheme of no-fault
divorce. Askew v Askew (1994, 4th Dist) 22 Cal App 4th 942 Shepardize , 28 Cal Rptr 2d 284 Shepardize , 1994 Cal App LEXIS
131 Shepardize . California's "anti-heartbalm" statute (CC § 43.5), enacted in 1939, prohibited (and still prohibits) lawsuits
seeking contract damages for the emotional pain of a broken engagement. As to the question of whether the statute also
prohibits tort lawsuits based on fraudulent or deceitful promises to marry or live as a married couple, the tort labels of
fraud and deceit are by themselves irrelevant; courts must look to the substance of the lawsuit. Askew v Askew (1994, 4th
Dist) 22 Cal App 4th 942 Shepardize , 28 Cal Rptr 2d 284 Shepardize , 1994 Cal App LEXIS 131 Shepardize .
Cal Evid Code § 663 Shepardize Ceremonial Marriage
Validity of Subsequent Marriage Rebutted
Presumption in favor of validity of the second marriage was dispelled by first wife's showing that no petition for annulment
or divorce had been filed by either herself or her spouse in any of their known domiciles since the date of their marriage;
and, upon second wife's failure to show that first marriage had been dissolved or that she qualified as a putative spouse,
first wife was entitled to widow's insurance benefits under 5 USCS §§ 8701 Shepardize et seq.Spearman v. Spearman (1973,
CA5 Ala) 482 F2d 1203 Shepardize , 1973 US App LEXIS 8894 Shepardize . The trial court properly found that a decedent's first
wife was his surviving spouse, as against a woman he had purportedly married after he had obtained a Mexican divorce
decree, and substantial evidence supported the court's determination that the presumption of Ev C § 663, of the validity of
a ceremonial marriage had been rebutted, where the decedent's sworn affidavit of application for the license for his
second marriage relied solely on the invalid Mexican decree to establish a divorce from the first wife, and where both the
second wife and the first wife testified they knew of no other divorce or annulment decree. Estate of Atherley (1975, 4th
Dist) 44 Cal App 3d 758 Shepardize , 119 Cal Rptr 41 Shepardize , 1975 Cal App LEXIS 973 Shepardize , 81 ALR3d 97 Shepardize
(disapproved by Marvin v. Marvin, 18 Cal 3d 660 Shepardize , 134 Cal Rptr 815 Shepardize , 557 P2d 106 Shepardize , 1976 Cal

LEXIS 377 Shepardize ).
Cal Fam Code § 63 Shepardize "Community estate"
Construction
Pursuant to the policy of the Family Law Act (former CC §§ 4000-5138), and contrary to judicial authority expressed
before its enactment, the trial court, in proceedings to declare a "marriage" a nullity, must disregard evidence of "guilt" and
must equally divide property which would have been community had the parties been married, even though both parties
had lived together in an ostensible marital, and actual family, relationship knowing that they were not married to each
other. In re Marriage of Cary (1973) 34 Cal App 3d 345 Shepardize , 109 Cal Rptr 862 Shepardize , 1973 Cal App LEXIS 806
Shepardize
. By the Family Law Act (former CC §§ 4000-5138), the Legislature had announced, as the public policy of the
state, that concepts of "guilt," punishment therefor, "innocence," and reward therefor were no longer relevant in the
determination of family property rights, whether there be a legal marriage or not, and if not, regardless of whether the
deficiency was known to one, or both, or neither of the parties. In re Marriage of Cary (1973) 34 Cal App 3d 345 Shepardize ,
109 Cal Rptr 862 Shepardize , 1973 Cal App LEXIS 806 Shepardize . In order to divide the community and quasi-community
property equally in marital dissolution proceedings, as called for by the general rule of former CC § 4800, the court must
have made specific findings of fact as to the nature and value of the parties' specific property. In re Marriage of Lopez
(1974) 38 Cal App 3d 93 Shepardize , 113 Cal Rptr 58 Shepardize , 1974 Cal App LEXIS 1040 Shepardize . Former CC § 4800
imposed a mandatory obligation on the trial court to order a distribution of community property. Such intent was implicit
within the legislative purpose of the Family Law Act and was bolstered by former Cal. Rules of Ct, Rule 1242, adopted by
the Judicial Council providing that "the court in every case shall ascertain the nature and extent of all assets and
obligations subject to disposition by the court in the proceeding and shall divide such assets and obligations as provided
in the Family Law Act, except upon the written agreement of parties or on oral stipulation of the parties made in open
court..." Thus, an order in a dissolution of marriage proceeding that "all community property shall be equally divided
between the parties, under the supervision of Counsel for the Parties" was inadequate as not sufficiently certain to permit
enforcement. The trial court had an obligation to make a property division meaningful to the parties and capable of
terminating the residual property bond between them. In re Marriage of Knickerbocker (1974) 43 Cal App 3d 1039 Shepardize
, 118 Cal Rptr 232 Shepardize , 1974 Cal App LEXIS 1374 Shepardize . The former Family Law Act (see now Fam C §§ 211, 300
et seq.) does not require an equal division of property accumulated in nonmarital actual family relationships, as no
language in the act addresses the property rights of nonmarital partners, and nothing in the legislative history of the act
suggests that the Legislature considered that subject, which prior to the act had been fixed entirely by judicial decision.
Marvin v Marvin (1976) 18 C3d 660 Shepardize , 134 Cal Rptr 815 Shepardize , 557 P2d 106 Shepardize , 1976 Cal LEXIS 377
Shepardize
. Under former CC § 4800, subd. (c), community property personal injury damages were intended to be an
exception to the equal division mandate found in former CC § 4899, subd. (a). Accordingly, the trial court did not abuse its
discretion in awarding personal injury damages to the wife as her separate property, where the facts which led to the
malpractice claim eventuating in damages arose only 36 days before the parties' separation, and where the injury was
traumatic and had apparent psychological effects on the wife. The trial court is vested with broad discretion to distribute

damages on dissolution and factors it may consider include the duration of marriage after the injuries occurred, the effect
of the injuries on the noninjured spouse, and whether a major portion if not the entirety of the award is necessary to "make
whole" the injured spouse. In re Marriage of Jacobson (1984, 2d Dist) 161 Cal App 3d 465 Shepardize , 207 Cal Rptr 512
Shepardize
, 1984 Cal App LEXIS 2674 Shepardize . If incurred after date of marriage but prior to separation, the community debt
must be divided under former CC § 4800, (see now Fam C §§ 211, 300 et seq.) requiring equal division of the net
community estate, ordinarily equally, subject to "economic circumstances" and "deliberate misappropriation" provisions.
However, to the extent debts exceed assets, an "equitable" division may be made, which, in a proper case, may justify an
unequal division. In re Marriage of Partridge (1990, 3rd Dist) 226 Cal App 3d 120 Shepardize , 276 Cal Rptr 8 Shepardize , 1990
Cal App LEXIS 1323 Shepardize .
Cal Fam Code § 700 Shepardize Leasehold interest in real property defined
Cal Fam Code § 760 Shepardize Community Property
Cal Fam Code § 803 Shepardize Property acquired by married woman before January 1, 1975
Cohabitation
A complaint filed by a woman against a man with whom she had lived for approximately six years, alleging that she and
the defendant made an oral agreement during the time they lived together that they would combine their efforts and
earnings and share equally the property they accumulated, that the plaintiff would render services to the defendant as a
companion, housemaker, housekeeper and cook, give up her career as an entertainer and singer, and that defendant
would provide her financial support for the rest of her life, but that defendant later forced her to leave his household and
refused to pay any further support to her or to recognize her and the property accumulated while they were living together,
stated a cause of action for breach of an express contract whose terms as alleged did not rest on any unlawful
consideration. Marvin v Marvin (1976) 18 C3d 660 Shepardize , 134 Cal Rptr 815 Shepardize , 557 P2d 106 Shepardize , 1976 Cal
LEXIS 377 Shepardize .
Cal Fam Code § 770 Shepardize Separate property of married person
Generally
Assent of husband was required, under statute of 1862 concerning separate property of wife, not only to sale by wife, but
also to her conveyance of separate property, and that assent was required to be expressed by his signature to
conveyance, made by himself, and he could not, by letter of attorney, delegate to another power to subscribe his name to
such conveyance. Meagher v Thompson (1874) 49 C 189 Shepardize , 1874 Cal LEXIS 283 Shepardize . A husband and wife
may agree between themselves without any other consideration than their mutual consent that money earned by the wife
in performing any work or service which does not devolve upon her by reason of the marriage relation shall belong to her

as her own, and when money has been earned by her under such an understanding or agreement it is her separate
property and she may maintain an action to recover the same. Wren v Wren (1893) 100 C 276 Shepardize , 34 P 775 Shepardize ,
1893 Cal LEXIS 784 Shepardize . Husband and wife may agree together that property purchased by wife and conveyed to her
shall be regarded as her separate property where there are no creditors to be affected by the agreement. Hoeck v Greif
(1904) 142 Cal 119 Shepardize , 75 P 670 Shepardize , 1904 Cal LEXIS 907 Shepardize , overruled on other grounds, Tyler v Currier
(1905) 147 Cal 31 Shepardize , 81 P 319 Shepardize , 1905 Cal LEXIS 354 Shepardize . A husband and wife may enter into a
contract with each other by which the husband may relinquish to the wife all of his interest in the community property, both
present and in expectancy, and thereby vest the same in the wife. Perkins v Sunset Tel. & Tel. Co. (1909) 155 Cal 712
Shepardize
, 103 P 190 Shepardize , 1909 Cal LEXIS 481 Shepardize . Court may construe income tax returns as evidencing
agreement concerning nature of property, with respect to whether it is community or separate. Nevins v Nevins (1954)
129 CA2d 150 Shepardize , 276 P2d 655 Shepardize , 1954 Cal App LEXIS 1576 Shepardize . Separate property of wife is not subject
to execution under judgment against her husband. Wilson v Grey (1955) 131 CA2d 58 Shepardize , 280 P2d 29 Shepardize , 1955
Cal App LEXIS 2008 Shepardize . Husband and wife may agree prior to marriage that during marriage her earnings are to be
separate property. Mitchell v Tibbetts (1955) 131 CA2d 480 Shepardize , 280 P2d 860 Shepardize , 1955 Cal App LEXIS 2075
Shepardize
. Enactment of statutes giving wife right to separate property and to make contracts with her husband concerning
same indicates legislative intent to abolish marital immunity insofar as it is applied to actions concerning property rights.
Langley v Schumacker (1956) 46 C2d 601 Shepardize , 297 P2d 977 Shepardize , 1956 Cal LEXIS 215 Shepardize . Where property
is purchased in name of wife, strong presumption arises that it is separate estate of wife, and such presumption cannot be
overthrown except by clear and convincing proof, nor can it be rebutted solely by evidence of source of funds. Ciambetti v.
Department of Alcoholic Beverage Control (1958) 161 CA2d 340 Shepardize , 326 P2d 535 Shepardize , 1958 Cal App LEXIS
1739 Shepardize . Income tax returns may be indicative of agreement concerning character of income reported therein,
whether community or separate property. Lawatch v Lawatch (1958) 161 CA2d 780 Shepardize , 327 P2d 603 Shepardize , 1958
Cal App LEXIS 1806 Shepardize . Husband and wife may change status of their property from separate to community by
executed oral agreement. Lawatch v Lawatch (1958) 161 CA2d 780 Shepardize , 327 P2d 603 Shepardize , 1958 Cal App LEXIS
1806 Shepardize . Where evidence shows without conflict that husband has voluntarily caused funds to be put into account
standing in wife's name, there is presumption he intends such funds to be her separate property. Rice v Ransom (1960)
186 CA2d 191 Shepardize , 8 Cal Rptr 840 Shepardize , 1960 Cal App LEXIS 1617 Shepardize . The character of property as
separate or community is determined when acquired. See v See (1966) 64 Cal 2d 778 Shepardize , 51 Cal Rptr 888 Shepardize ,
415 P2d 776 Shepardize , 1966 Cal LEXIS 309 Shepardize . All property, except separate property as defined in former CC §§
162, 163 (see now Fam C §§ 700, 751 et seq.), acquired by either spouse during the marriage was community property,
and the burden rests on the party asserting that property acquired after the marriage was separate to establish that fact.
Patterson v Patterson (1966) 242 CA2d 333 Shepardize , 51 Cal Rptr 339 Shepardize , 1966 Cal App LEXIS 1132 Shepardize ,
disapproved on other grounds, See v See (1966) 64 Cal 2d 778 Shepardize , 51 Cal Rptr 888 Shepardize , 415 P2d 776 Shepardize ,
1966 Cal LEXIS 309 Shepardize . A complaint filed by a woman against a man with whom she had lived for approximately six
years, alleging that she and the defendant made an oral agreement during the time they lived together that they would
combine their efforts and earnings and share equally the property they accumulated, that the plaintiff would render
services to the defendant as a companion, housemaker, housekeeper and cook, give up her career as an entertainer and
singer, and that defendant would provide her financial support for the rest of her life, but that defendant later forced her to

leave his household and refused to pay any further support to her or to recognize her and the property accumulated while
they were living together, stated a cause of action for breach of an express contract whose terms as alleged did not rest
on any unlawful consideration. Marvin v Marvin (1976) 18 C3d 660 Shepardize , 134 Cal Rptr 815 Shepardize , 557 P2d 106
Shepardize
, 1976 Cal LEXIS 377 Shepardize . Where spouse is operating business that is spouse's separate property, it is
primarily question of fact what portion of profits arising during marriage is due to use of spouse's separate capital and
what portion arises from spouse's activity and personal ability. Tassi v Tassi (1958, 1st Dist) 160 Cal App 2d 680 Shepardize ,
325 P2d 872 Shepardize , 1958 Cal App LEXIS 2172 Shepardize .
Cal Fam Code § 780 Shepardize Damages for personal injury to married person as community property
Construction
Pursuant to the policy of the Family Law Act (former CC §§ 4000-5138, see now Fam C §§ 211, 300 et seq.), and contrary
to judicial authority expressed before its enactment, the trial court, in proceedings to declare a "marriage" a nullity, must
disregard evidence of "guilt" and must equally divide property which would have been community had the parties been
married, even though both parties had lived together in an ostensible marital, and actual family, relationship knowing that
they were not married to each other. In re Marriage of Cary (1973) 34 Cal App 3d 345 Shepardize , 109 Cal Rptr 862 Shepardize ,
1973 Cal App LEXIS 806 Shepardize . By the Family Law Act (former CC §§ 4000-5138, see now Fam C §§ 211, 300 et seq.),
the Legislature has announced, as the public policy of the state, that concepts of "guilt," punishment therefor, "innocence,"
and reward therefor are no longer relevant in the determination of family property rights, whether there be a legal marriage
or not, and if not, regardless of whether the deficiency is known to one, or both, or neither of the parties. In re Marriage of
Cary (1973) 34 Cal App 3d 345 Shepardize , 109 Cal Rptr 862 Shepardize , 1973 Cal App LEXIS 806 Shepardize . In order to divide
the community and quasi-community property equally in marital dissolution proceedings, as called for by the general rule
of former CC § 4800 (see now Fam C §§ 63, 780, 2550 et seq.), the court must make specific findings of fact as to the
nature and value of the parties' specific property. In re Marriage of Lopez (1974) 38 Cal App 3d 93 Shepardize , 113 Cal Rptr
58 Shepardize , 1974 Cal App LEXIS 1040 Shepardize . Former CC § 4800 (see now Fam C §§ 63, 780, 2550 et seq.) imposed a
mandatory obligation on the trial court to order a distribution of community property. Such intent was implicit within the
legislative purpose of the Family Law Act and was bolstered by former Cal. Rules of Ct, Rule 1242, adopted by the
Judicial Council providing that "the court in every case shall ascertain the nature and extent of all assets and obligations
subject to disposition by the court in the proceeding and shall divide such assets and obligations as provided in the Family
Law Act, except upon the written agreement of parties or on oral stipulation of the parties made in open court..." Thus, an
order in a dissolution of marriage proceeding that "all community property shall be equally divided between the parties,
under the supervision of Counsel for the Parties" is inadequate as not sufficiently certain to permit enforcement. The trial
court has an obligation to make a property division meaningful to the parties and capable of terminating the residual
property bond between them. In re Marriage of Knickerbocker (1974) 43 Cal App 3d 1039 Shepardize , 118 Cal Rptr 232
Shepardize
, 1974 Cal App LEXIS 1374 Shepardize . The Family Law Act does not require an equal division of property
accumulated in nonmarital actual family relationships, as no language in the act addresses the property rights of
nonmarital partners, and nothing in the legislative history of the act suggests that the Legislature considered that subject,

which prior to the act had been fixed entirely by judicial decision. Marvin v Marvin (1976) 18 C3d 660 Shepardize , 134 Cal
Rptr 815 Shepardize , 557 P2d 106 Shepardize , 1976 Cal LEXIS 377 Shepardize . Under former CC § 4800, subd. (c) (see now Fam
C §§ 63, 780, 2550 et seq.), community property personal injury damages were intended to be an exception to the equal
division mandate found in former CC § 4800, subd. (a). Accordingly, the trial court did not abuse its discretion in awarding
personal injury damages to the wife as her separate property, where the facts which led to the malpractice claim
eventuating in damages arose only 36 days before the parties' separation, and where the injury was traumatic and had
apparent psychological effects on the wife. The trial court is vested with broad discretion to distribute damages on
dissolution and factors it may consider include the duration of marriage after the injuries occurred, the effect of the injuries
on the noninjured spouse, and whether a major portion if not the entirety of the award is necessary to "make whole" the
injured spouse. In re Marriage of Jacobson (1984, 2d Dist) 161 Cal App 3d 465 Shepardize , 207 Cal Rptr 512 Shepardize , 1984
Cal App LEXIS 2674 Shepardize . If incurred after date of marriage but prior to separation, the community debt must be
divided under former CC § 4800, subds. (a) and (b) (see now Fam C §§ 63, 780, 2550 et seq.), required equal division of
the net community estate, ordinarily equally, subject to "economic circumstances" and "deliberate misappropriation"
provisions. However, to the extent debts exceed assets, an "equitable" division may be made, which, in a proper case,
may justify an unequal division. In re Marriage of Partridge (1990, 3rd Dist) 226 Cal App 3d 120 Shepardize , 276 Cal Rptr 8
Shepardize
, 1990 Cal App LEXIS 1323 Shepardize .
Cal Fam Code § 2550 Shepardize Equal division of community estate
Construction
the Legislature had announced, as the public policy of the state, that concepts of "guilt," punishment therefor, "innocence,"
or not, and if not, regardless of whether the deficiency is known to one, or both, or neither of the parties. In re Marriage of
Cary (1973) 34 Cal App 3d 345 Shepardize , 109 Cal Rptr 862 Shepardize , 1973 Cal App LEXIS 806 Shepardize . In order to divide
nature and value of the parties' specific property. In re Marriage of Lopez (1974, 3rd Dist) 38 Cal App 3d 93 Shepardize , 113
Cal Rptr 58 Shepardize , 1974 Cal App LEXIS 1040 Shepardize , disapproved on other grounds, In re Marriage of Morrison (1978)
20 Cal 3d 437 Shepardize , 143 Cal Rptr 139 Shepardize , 573 P2d 41 Shepardize , 1978 Cal LEXIS 177 Shepardize . Former CC § 4800
(see now Fam C §§ 63, 780, 2550 et seq.) imposed a mandatory obligation on the trial court to order a distribution of
community property. Such intent was implicit within the legislative purpose of the Family Law Act and was bolstered by

former Cal. Rules of Ct, Rule 1242 (see now Cal. Rules of Court, Rule 5.10 et seq.), adopted by the Judicial Council
provided that "the court in every case shall ascertain the nature and extent of all assets and obligations subject to
disposition by the court in the proceeding and shall divide such assets and obligations as provided in the Family Law Act,
except upon the written agreement of parties or on oral stipulation of the parties made in open court..." Thus, an order in a
dissolution of marriage proceeding that "all community property shall be equally divided between the parties, under the
supervision of Counsel for the Parties" was inadequate as not sufficiently certain to permit enforcement. The trial court
has an obligation to make a property division meaningful to the parties and capable of terminating the residual property
bond between them. In re Marriage of Knickerbocker (1974) 43 Cal App 3d 1039 Shepardize , 118 Cal Rptr 232 Shepardize , 1974
Cal App LEXIS 1374 Shepardize . The Family Law Act does not require an equal division of property accumulated in
nonmarital actual family relationships, as no language in the act addresses the property rights of nonmarital partners, and
nothing in the legislative history of the act suggests that the Legislature considered that subject, which prior to the act had
been fixed entirely by judicial decision. Marvin v. Marvin, 18 Cal 3d 660 Shepardize , 134 Cal Rptr 815 Shepardize , 557 P2d 106
Shepardize
, 1976 Cal LEXIS 377 Shepardize . Under former CC § 4800, subd. (c) (see now Fam C §§ 63, 780, 2550 et seq.),
community property personal injury damages were intended to be an exception to the equal division mandate found in
former CC § 4800, subd. (a). Accordingly, the trial court did not abuse its discretion in awarding personal injury damages
to the wife as her separate property, where the facts which led to the malpractice claim eventuating in damages arose
only 36 days before the parties' separation, and where the injury was traumatic and had apparent psychological effects on
the wife. The trial court was vested with broad discretion to distribute damages on dissolution and factors it may consider
include the duration of marriage after the injuries occurred, the effect of the injuries on the noninjured spouse, and
whether a major portion if not the entirety of the award is necessary to "make whole" the injured spouse. In re Marriage of
Jacobson (1984, 2d Dist) 161 Cal App 3d 465 Shepardize , 207 Cal Rptr 512 Shepardize , 1984 Cal App LEXIS 2674 Shepardize . If
incurred after date of marriage but prior to separation, the community debt must be divided under former CC § 4800,
subds. (a) and (b) (see now Fam C §§ 63, 780, 2550 et seq.), required equal division of the net community estate,
ordinarily equally, subject to "economic circumstances" and "deliberate misappropriation" provisions. However, to the
extent debts exceed assets, an "equitable" division may be made, which, in a proper case, may justify an unequal
division. In re Marriage of Partridge (1990, 3rd Dist) 226 Cal App 3d 120 Shepardize , 276 Cal Rptr 8 Shepardize , 1990 Cal App
LEXIS 1323 Shepardize .
Cal Fam Code § 2551 Shepardize Characterization of liabilities as separate or community and confirming or assigning them to parties
Construction

or not, and if not, regardless of whether the deficiency was known to one, or both, or neither of the parties. In re Marriage
of Cary (1973) 34 Cal App 3d 345 Shepardize , 109 Cal Rptr 862 Shepardize , 1973 Cal App LEXIS 806 Shepardize . In order to divide
nature and value of the parties' specific property. In re Marriage of Lopez (1974) 38 Cal App 3d 93 Shepardize , 113 Cal Rptr
58 Shepardize , 1974 Cal App LEXIS 1040 Shepardize . Former CC § 4800 (see now Fam C §§ 63, 780, 2550 et seq.) imposed a
mandatory obligation on the trial court to order a distribution of community property. Such intent was implicit within the
legislative purpose of the Family Law Act and was bolstered by former Cal. Rules of Ct, Rule 1242, adopted by the
Judicial Council provided that "the court in every case shall ascertain the nature and extent of all assets and obligations
subject to disposition by the court in the proceeding and shall divide such assets and obligations as provided in the Family
Law Act, except upon the written agreement of parties or on oral stipulation of the parties made in open court..." Thus, an
order in a dissolution of marriage proceeding that "all community property shall be equally divided between the parties,
under the supervision of Counsel for the Parties" was inadequate as not sufficiently certain to permit enforcement. The
trial court has an obligation to make a property division meaningful to the parties and capable of terminating the residual
property bond between them. In re Marriage of Knickerbocker (1974) 43 Cal App 3d 1039 Shepardize , 118 Cal Rptr 232
Shepardize
, 1974 Cal App LEXIS 1374 Shepardize . The Family Law Act does not require an equal division of property
accumulated in nonmarital actual family relationships, as no language in the act addresses the property rights of
apparent psychological effects on the wife. The trial court is vested with broad discretion to distribute damages on
on the noninjured spouse, and whether a major portion if not the entirety of the award is necessary to "make whole" the
Shepardize

Cal Fam Code § 2552 Shepardize Valuation date for assets and liabilities
Construction
and rewarded therefor are no longer relevant in the determination of family property rights, whether there be a legal
marriage or not, and if not, regardless of whether the deficiency was known to one, or both, or neither of the parties. In re
Marriage of Cary (1973) 34 Cal App 3d 345 Shepardize , 109 Cal Rptr 862 Shepardize , 1973 Cal App LEXIS 806 Shepardize . In
order to divide the community and quasi-community property equally in marital dissolution proceedings, as called for by
the general rule of former CC § 4800 (see now Fam C §§ 63, 780, 2550 et seq.), the court must make specific findings of
fact as to the nature and value of the parties' specific property. In re Marriage of Lopez (1974) 38 Cal App 3d 93 Shepardize ,
113 Cal Rptr 58 Shepardize , 1974 Cal App LEXIS 1040 Shepardize . Former CC § 4800 (see now Fam C §§ 63, 780, 2550 et
seq.) imposed a mandatory obligation on the trial court to order a distribution of community property. Such intent was
implicit within the legislative purpose of the Family Law Act and was bolstered by former Cal. Rules of Ct, Rule 1242,
adopted by the Judicial Council providing that "the court in every case shall ascertain the nature and extent of all assets
and obligations subject to disposition by the court in the proceeding and shall divide such assets and obligations as
provided in the Family Law Act, except upon the written agreement of parties or on oral stipulation of the parties made in
open court..." Thus, an order in a dissolution of marriage proceeding that "all community property shall be equally divided
between the parties, under the supervision of Counsel for the Parties" was inadequate as not sufficiently certain to permit
enforcement. The trial court had an obligation to make a property division meaningful to the parties and capable of
terminating the residual property bond between them. In re Marriage of Knickerbocker (1974) 43 Cal App 3d 1039 Shepardize
, 118 Cal Rptr 232 Shepardize , 1974 Cal App LEXIS 1374 Shepardize . The Family Law Act does not require an equal division of
property accumulated in nonmarital actual family relationships, as no language in the act addresses the property rights of
apparent psychological effects on the wife. The trial court was vested with broad discretion to distribute damages on

on the noninjured spouse, and whether a major portion if not the entirety of the award was necessary to "make whole" the
Shepardize
Cal Fam Code § 4301 Shepardize Use of separate property for support while living together
Non-marital agreements
Adults who voluntarily live together and engage in sexual relations are nonetheless as competent as any other persons to
contract respecting their earnings and property rights, and so long as their agreement does not rest upon any illicit
meretricious consideration, they may order their economic affairs as they choose, and no policy precludes the courts from
enforcing such agreements. Marvin v Marvin (1976) 18 C3d 660 Shepardize , 134 Cal Rptr 815 Shepardize , 557 P2d 106 Shepardize
, 1976 Cal LEXIS 377 Shepardize .
News
Recent News Coverage of the Case
Mimi Avins, On Mitchelson, Palimony and Contractual Obligations, L.A. Times, Sept. 21, 2004.
Marvin v. Marvin, a sexy case cultivated in the rich loam of Hollywood, had everything today's tabloid TV thrives on:
intense emotions, lots of money at stake and broad social significance. Afterwards, palimony suits have been eclipsed by
premarital agreements and cohabitation contracts. Marvin was important for granting the right to sue based on a claim of
a significant relationship arising out of cohabitation.
Marlene Adler Marks, For Richer or for Poorer; We No Longer Scorn Live-In Relationships, But We Still Invest Our Social, Legal
and Economic Capital in Marriage, L.A. Times, June 1, 1994.
This article discusses the first palimony case, Marvin v. Marvin and compares it to recent caselaw. Although California law
allows lovers to make contracts, it does not presume that one exists even when the relationship is longstanding.
Cynthia Gorney, Loved and Left: The Palimony Question; When Is a Romance Also a Contract? A Legal Quandary, Washington
Post, Jan. 30, 1989.

This article discusses the first palimony case, Marvin v. Marvin and compares it to recent caselaw. Judges making their
way through the post-Marvin landscape suggest that a legally enforceable contractual arrangement should look as much
as possible like a staid and heterosexual marriage. In the years since the Marvin ruling, domestic-relations lawyers have
learned how draft cohabitation agreements.
Recent News Coverage of the Issue
Clare Dyer, Cohabiting Couples Warned to Protect Their Property Rights: Law Lords Case Exposes Pitfalls after Break-Up:
Lawyers Urge Lovers to Put Home Shares in Writing, The Guardian (London), Apr. 30, 2007.
Britain’s highest court held that, where an unmarried couple buy their home in joint names, the presumption is that they
own it in equal shares. More than 2 million unmarried couples live together in Britain. Lawyers advise written agreements.
Rebecca Eckler, The Permanent Fiancée; Just Like Celebs, Many Couples are Choosing Not to Tie the Knot Officially. But
Sometimes a Girl Needs Something to Show Off - Like a Big Sparkly Ring, Globe and Mail (Canada), Feb. 10, 2007.
Common-law unions are common in Canada, roughly 14 per cent of all couples were common-law in 21001. Thirty
percent of partners are not married in Quebec. In most provinces, one is entitled to spousal support, but not a share of
property. In Quebec, common-law arrangements do not entail subsequent spousal support or property rights.
Lauren Foster, Price of Staying Out of Wedlock Protections and Benefits: Couples Who Cannot or Choose Not To Marry Can
Expect To Face a Host of Difficulties and Even Penalties, Financial Times (London, England), USA Edition, Jan. 16, 2007.
This article discusses tax planning for same-sex couples including the creation of a testamentary charitable remainder
uni-trust, cohabitation agreements, irrevocable life insurance trusts, and retirement accounts.
Relationships: Cohabiting Seniors, Saint Paul Pioneer Press (Minnesota), July 6, 2006.
The number of men and women 65 and older who choose to live together without getting married nearly doubled in a
decade. AARP recommends that older couples should protect their individual assets and their children's inheritances by
putting it all in writing with a prenuptial or pre-cohabitation agreement.
Sandra Fleishman, Caveat Co-Owner; For Unmarried Buyers Sharing a House Purchase, the Price May Be Right -- Until the
Relationship Goes Wrong, Washington Post, June 24, 2006.

Pre-habitation agreements or home sharing agreements are common among unmarried friends or couples that purchase
a home together for financial or other benefits. By pooling money, friends can purchase more property with better
investment potential. The potential for disaster, however, may be lessened by written agreements.
John Gin, Unmarried Seniors Living Together Are Increasing; They Face Unique Financial Hurdles, Times-Picayune (New
Orleans), Mar. 14, 2006.
Retirees often fear financial losses and chose to cohabitate rather than wed. Financial fears include the notion that
remarriage may mean giving up a former spouse's pension, Social Security and medical insurance. Cohabitation
agreements separate their assets and outline inheritances while they are living together. Sample cohabitation agreements
can be on the Web at www.nolo.com.
Janet Kidd Stewart, Unmarried Couples Need Paper Trail of Wishes, Chicago Tribune, Feb. 19, 2006.
By taking control of what they can change--writing a partnership agreement, health-care powers of attorney and wills--
unmarried couples can create a paper trail showing their wishes in explicit detail.
Bill Lubinger, Avoiding Legal Pitfalls of Living Together Unmarried, Plain Dealer (Cleveland), Aug. 1, 2005.
For cohabitants, it is important to have documents like powers of attorney for healthcare and finances that dictate
responsibility for decision-making when the other person can’t. It is also important to consider how shared property is titled
and whose names are on the bank and investment accounts. A cohabitation agreement should be written to outline a
couple’s rights and obligations in case the relationship ends.
Recent News Coverage of the Parties
Palimony Lawyer Back at Work, Deseret News (Salt Lake City), Aug. 14, 2001.
Marvin Mitchelson, the lawyer for Michelle Triola or Michelle Marvin in Marvin vs. Marvin in 1972, was released from
prison for tax evasion. He recently opened a West Hollywood law office at age 73. Gold-plated Hollywood divorces were
his specialty, and he pioneered the legal revolution known as "palimony" that sanctions the division of property between
unmarried, cohabitating partners.
Divorce Lawyer to the Stars Marvin Mitchelson Dies, Agence France Presse, Sept. 20, 2004.
Marvin Mitchelson, who invented the concept of "palimony" payments for jilted lovers of stars, died at the age of 76. He
fought cases involving famous clients such as Joan Collins, Robert DeNiro, Bob Dylan and Hugh Hefner, and pioneered
palimony in a suit brought against late movie star Lee Marvin by his ex-lover.

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Marvin v. Marvin
18 Cal. 3d 660 Shepardize
MICHELLE MARVIN, Plaintiff and Appellant, v. LEE MARVIN, Defendant and Respondent
L.A. No. 30520
Supreme Court of California
18 Cal. 3d 660 Shepardize ; 557 P.2d 106 Shepardize ; 134 Cal. Rptr. 815 Shepardize ; 1976 Cal. LEXIS 377 Shepardize
December 27, 1976
December 27, 1976 Respondent.
Superior Court of Los Angeles County, No. C-23303, William A. Isabella H. Grant and Livingston, Grant, Stone & Shenk as Amici
Munnell, Judge. DISPOSITION: The judgment is reversed and the Curiae.
cause remanded for further proceedings consistent with the views
expressed herein. n27n27 Opinion by Tobriner, J., with Wright, C. J., McComb, Mosk, Sullivan
and Richardson, JJ., concurring. Separate concurring and dissenting
n27 We wish to commend the parties and amici for the exceptional opinion by Clark, J. OPINION: TOBRINER OPINION: During the
quality of the briefs and argument in this case. past 15 years, there has been a substantial increase in the number
of couples living together without marrying. n1 Such nonmarital
COUNSEL: Marvin M. Mitchelson, Donald N. Woldman, Robert M. relationships lead to legal controversy when one partner dies or the
Ross, Fleishman, McDaniel, Brown & Weston and David M. Brown couple separates. Courts of Appeal, faced with the task of
for Plaintiff and Appellant. determining property rights in such cases, have arrived at conflicting
positions: two cases ( In re Marriage of Cary (1973) 34 Cal.App.3d
Jettie Pierce Selvig, Ruth Miller and Suzie S. Thorn as Amici Curiae 345 Shepardize [109 Cal.Rptr. 862 Shepardize ]; Estate of Atherley (1975)
on behalf of Plaintiff and Appellant. 44 Cal.App.3d 758 Shepardize [119 Cal.Rptr. 41 Shepardize ]) have held
that the Family Law Act ( Civ. Code, § 4000 et seq.) requires division
Goldman & Kagon, Mark A. Goldman and William R. Bishin for of the property according to community property principles, and one
Defendant and Respondent. decision ( Beckman v. Mayhew (1975) 49 Cal.App.3d 529 Shepardize
[122 Cal.Rptr. 604 Shepardize ]) has rejected that holding. We take this
Herma Hill Kay, John Sutter, Doris Brin Walker and Treuhaft, Walker, opportunity to resolve that controversy and to declare the principles
Nawi & Hendon as Amici Curiae on behalf of Defendant and which should govern distribution of property acquired in a nonmarital
Case Text Page 1

relationship.n1 241 Shepardize , 527 P.2d 865 Shepardize ]; 4 Witkin, Cal. Procedure (2d
ed. 1971) pp. 2817-2818.) We turn therefore to the specific
n1 "The 1970 census figures indicate that today perhaps eight times allegations of the complaint.
as many couples are living together without being married as
cohabited ten years ago." (Comment, In re Cary: A Judicial Plaintiff avers that in October of 1964 she and defendant "entered
Recognition of Illicit Cohabitation (1974) 25 Hastings L.J. 1226 .) into an oral agreement" that while "the parties lived together they
would combine their efforts and earnings and would share equally
We conclude: (1) [HN1] The provisions of the Family Law Act do not any and all property accumulated as a result of their efforts whether
govern the distribution of property acquired during a nonmarital individual or combined." Furthermore, they agreed to "hold
relationship; such a relationship remains subject solely to judicial themselves out to the general public as husband and wife" and that
decision. (2) The [HN2] courts should enforce express contracts "plaintiff would further render her services as a companion,
between nonmarital partners except to the extent that the contract is homemaker, housekeeper and cook to . . . defendant."
explicitly founded on the consideration of meretricious sexual
services. (3) [HN3] In the absence of an express contract, the courts Shortly thereafter plaintiff agreed to "give up her lucrative career as
should inquire into the conduct of the parties to determine whether an entertainer [and] singer" in order to "devote her full time to
that conduct demonstrates an implied contract, agreement of defendant . . . as a companion, homemaker, housekeeper and cook;"
partnership or joint venture, or some other tacit understanding in return defendant agreed to "provide for all of plaintiff's financial
between the parties. The courts may also employ the doctrine of support and needs for the rest of her life."
quantum meruit, or equitable remedies such as constructive or
resulting trusts, when warranted by the facts of the case. Plaintiff alleges that she lived with defendant from October of 1964
through May of 1970 and fulfilled her obligations under the
In the instant case plaintiff and defendant lived together for seven agreement. During this period the parties as a result of their efforts
years without marrying; all property acquired during this period was and earnings acquired in defendant's name substantial real and
taken in defendant's name. When plaintiff sued to enforce a contract personal property, including motion picture rights worth over $ 1
under which she was entitled to half the property and to support million. In May of 1970, however, defendant compelled plaintiff to
payments, the trial court granted judgment on the pleadings for leave his household. He continued to support plaintiff until November
defendant, thus leaving him with all property accumulated by the of 1971, but thereafter refused to provide further support.
couple during their relationship. Since the trial court denied plaintiff a
trial on the merits of her claim, its decision conflicts with the On the basis of these allegations plaintiff asserts two causes of
principles stated above, and must be reversed. action. The first, for declaratory relief, asks the court to determine her
contract and property rights; the second seeks to impose a
1. The factual setting of this appeal. constructive trust upon one half of the property acquired during the
course of the relationship.
(1) [HN4] Since the trial court rendered judgment for defendant on
the pleadings, we must accept the allegations of plaintiff's complaint Defendant demurred unsuccessfully, and then answered the
as true, determining whether such allegations state, or can be complaint. (See fn. 2.) (2) Following extensive discovery and pretrial
amended to state, a cause of action. (See Sullivan v. County of Los proceedings, the case came to trial. n2 Defendant renewed his
Shepardize
Angeles (1974) 12 Cal.3d 710, 714-715 , fn. 3 [117 Cal.Rptr. attack on the complaint by a motion to dismiss. Since the parties had
Case Text Page 2

stipulated that defendant's marriage to Betty Marvin did not terminate [Citations.]" ( Nelson v. Specialty Records, Inc., supra, 11 Cal.App.3d
until the filing of a final decree of divorce in January 1967, the trial at p. 139.) No such showing here appears.
court treated defendant's motion as one for judgment on the
pleadings augmented by the stipulation. After hearing argument the court granted defendant's motion and
entered judgment for defendant. Plaintiff moved to set aside the
n2 judgment and asked leave to amend her complaint to allege that she
and defendant reaffirmed their agreement after defendant's divorce
n2 When the case was called for trial, plaintiff asked leave to file an was final. The trial court denied plaintiff's motion, and she appealed
amended complaint. The proposed complaint added two causes of from the judgment.
action for breach of contract against Santa Ana Records, a
corporation not a party to the action, asserting that Santa Ana was 2. (3a) Plaintiff's complaint states a cause of action for breach of an
an alter ego of defendant. The court denied leave to amend, and express contract.
plaintiff claims that the ruling was an abuse of discretion. We
disagree; plaintiff's argument was properly rejected by the Court of Link P. Arg.▲ In Trutalli v. Meraviglia (1932) 215 Cal. 698 Shepardize
Appeal in the portion of its opinion quoted below. [12 P.2d 430 Shepardize ] we established the principle that [HN7]
nonmarital partners may lawfully contract concerning the ownership
No error was committed in denial of plaintiff's motion, made on the of property acquired during the relationship. We reaffirmed this
opening day set for trial, seeking leave to file a proposed amended principle in Vallera v. Vallera (1943) 21 Cal.2d 681, 685 Shepardize [134
complaint which would have added two counts and a new defendant P.2d 761 Shepardize ], stating that "If a man and woman [who are not
to the action. As stated by plaintiff's counsel at the hearing, "[There] married] live together as husband and wife under an agreement to
is no question about it that we seek to amend the Complaint not on pool their earnings and share equally in their joint accumulations,
the eve of trial but on the day of trial." equity will protect the interests of each in such property."
Shepardize
In Hayutin v. Weintraub, 207 Cal.App.2d 497 [24 Cal.Rptr. In the case before us plaintiff, basing her cause of action in contract
Shepardize
761 ], the court said at pages 508-509 in respect to such upon these precedents, maintains that the trial court erred in denying
[HN5] a motion that had it been granted, it "would have required a her a trial on the merits of her contention. Although that court did not
long continuance for the purpose of canvassing wholly new factual specify the ground for its conclusion that plaintiff's contractual
issues, a redoing of the elaborate discovery procedures previously allegations stated no cause of action, n3 defendant offers some four
had, all of which would have imposed upon defendant and his theories to sustain the ruling; we proceed to examine them.
witnesses substantial inconvenience . . . and upon defendant
needless and substantial additional expense. . . . The court did not n3
err in denying leave to file the proposed amended complaint." (See
also: Nelson v. Specialty Records, Inc., 11 Cal.App.3d 126, 138-139 n3 The colloquy between court and counsel at argument on the
Shepardize
[89 Cal.Rptr. 540 Shepardize ]; Moss Estate Co. v. Adler, 41 motion for judgment on the pleadings suggests that the trial court
Cal.2d 581, 585 Shepardize [261 P.2d 732 Shepardize ]; Vogel v. Thrifty held the 1964 agreement violated public policy because it derogated
Drug Co., 43 Cal.2d 184, 188 Shepardize [272 P.2d 1 Shepardize ].) "The the community property rights of Betty Marvin, defendant's lawful
[HN6] ruling of the trial judge will not be disturbed upon appeal wife. Plaintiff, however, offered to amend her complaint to allege that
absent a showing by appellant of a clear abuse of discretion. she and defendant reaffirmed their contract after defendant and
Case Text Page 3

Betty were divorced. The trial court denied leave to amend, a ruling of aiding and abetting defendant's violation. (See [HN9] In re Cooper
Shepardize
which suggests that the court's judgment must rest upon some other (1912) 162 Cal. 81, 85-86 [121 P. 318 Shepardize ].)
ground than the assertion that the contract would injure Betty's
property rights. The numerous cases discussing the contractual rights of unmarried
couples have drawn no distinction between illegal relationships and
Link P. Arg.▲ Defendant first and principally relies on the contention lawful nonmarital relationships. (Cf. Weak v. Weak (1962) 202
that the alleged contract is so closely related to the supposed Cal.App.2d 632, 639 Shepardize [21 Cal.Rptr. 9 Shepardize ] (bigamous
"immoral" character of the relationship between plaintiff and himself marriage).) Moreover, even if we were to draw such a distinction -- a
that the enforcement of the contract would violate public policy. n4 largely academic endeavor in view of the repeal of section 269a --
He points to cases asserting that a contract between nonmarital defendant probably would not benefit; his relationship with plaintiff
partners is unenforceable if it is "involved in" an illicit relationship continued long after his divorce became final, and plaintiff sought to
(see Shaw v. Shaw (1964) 227 Cal.App.2d 159, 164 Shepardize [38 amend her complaint to assert that the parties reaffirmed their
Cal.Rptr. 520 Shepardize ] (dictum); Garcia v. Venegas (1951) 106 contract after the divorce.
Cal.App.2d 364, 368 Shepardize [235 P.2d 89 Shepardize ] (dictum), or
made in "contemplation" of such a relationship ( Hill v. Estate of In the first case to address this issue, Trutalli v. Meraviglia, supra,
Westbrook (1950) 95 Cal.App.2d 599, 602 Shepardize [213 P.2d 727 215 Cal. 698 Shepardize , the parties had lived together without marriage
Shepardize
]; see Hill v. Estate of Westbrook (1952) 39 Cal.2d 458, 460 for 11 years and had raised two children. The man sued to quiet title
Shepardize
[247 P.2d 19 Shepardize ]; Barlow v. Collins (1958) 166 to land he had purchased in his own name during this relationship;
Cal.App.2d 274, 277 Shepardize [333 P.2d 64 Shepardize ] (dictum); the woman defended by asserting an agreement to pool earnings
Bridges v. Bridges (1954) 125 Cal.App.2d 359, 362 Shepardize [270 and hold all property jointly. Rejecting the assertion of the illegality of
P.2d 69 Shepardize ] (dictum)). A review of the numerous California the agreement, the court stated that [HN10] "The fact that the parties
decisions concerning contracts between nonmarital partners, to this action at the time they agreed to invest their earnings in
however, reveals that the courts have not employed such broad and property to be held jointly between them were living together in an
uncertain standards to strike down contracts. The decisions instead unlawful relation, did not disqualify them from entering into a lawful
disclose a narrower and more precise standard: [HN8] a contract agreement with each other, so long as such immoral relation was not
between nonmarital partners is unenforceable only to the extent that made a consideration of their agreement." (Italics added.) (215 Cal.
it explicitly rests upon the immoral and illicit consideration of at pp. 701-702.)
meretricious sexual services.
In Bridges v. Bridges, supra, 125 Cal.App.2d 359 [270 P.2d 69]
Shepardize
n4 , both parties were in the process of obtaining divorces from
their erstwhile respective spouses. The two parties agreed to live
n4 Defendant also contends that the contract was illegal because it together, to share equally in property acquired, and to marry when
contemplated a violation of former Penal Code section 269a, which their divorces became final. The man worked as a salesman and
prohibited living "in a state of cohabitation and adultery." (§ 269a was used his savings to purchase properties. The woman kept house,
repealed by Stats. 1975, ch. 71, eff. Jan. 1, 1976.) Defendant's cared for seven children, three from each former marriage and one
standing to raise the issue is questionable because he alone was from the nonmarital relationship, and helped construct improvements
married and thus guilty of violating section 269a. Plaintiff, being on the properties. When they separated, without marrying, the court
unmarried could neither be convicted of adulterous cohabitation nor awarded the woman one-half the value of the property. Rejecting the
Case Text Page 4

man's contention that the contract was illegal, the court stated that: n5
"Nowhere is it expressly testified to by anyone that there was
anything in the agreement for the pooling of assets and the sharing n5 Defendant urges that all of the cited cases, with the possible
of accumulations that contemplated meretricious relations as any exception of In re Marriage of Foster, supra, 42 Cal.App.3d 577
Shepardize
part of the consideration or as any object of the agreement." (125 and Bridges v. Bridges, supra, 125 Cal.App.2d 359 Shepardize ,
Cal.App.2d at p. 363.) can be distinguished on the ground that the partner seeking to
enforce the contract contributed either property or services additional
Croslin v. Scott (1957) 154 Cal.App.2d 767 Shepardize [316 P.2d 755 to ordinary homemaking services. [HN12] No case, however,
Shepardize
] reiterates the rule established in Trutalli and Bridges. In suggests that a pooling agreement in which one partner contributes
Croslin the parties separated following a three-year nonmarital only homemaking services is invalid, and dictum in Hill v. Estate of
relationship. The woman then phoned the man, asked him to return Westbrook, supra, 95 Cal.App.2d 599, 603 Shepardize [213 P.2d 727
Shepardize
to her, and suggested that he build them a house on a lot she ] states the opposite. Link P. Arg.▲ A promise to perform
owned. She agreed in return to place the property in joint ownership. homemaking services is, of course, a lawful and adequate
The man built the house, and the parties lived there for several more consideration for a contract (see Taylor v. Taylor (1954) 66
years. When they separated, he sued to establish his interest in the Cal.App.2d 390, 398 Shepardize [152 P.2d 480 Shepardize ]) -- otherwise
property. Reversing a nonsuit, the Court of Appeal stated that [HN11] those engaged in domestic employment could not sue for their
"The mere fact that parties agree to live together in meretricious wages -- and defendant advances no reason why his proposed
relationship does not necessarily make an agreement for disposition distinction would justify denial of enforcement to contracts supported
of property between them invalid. It is only when the property by such consideration. (See Tyranski v. Piggins (1973) 44 Mich.App.
agreement is made in connection with the other agreement, or the 570 Shepardize [205 N.W.2d 595, 597 Shepardize ].)
illicit relationship is made a consideration of the property agreement,
that the latter becomes illegal." (154 Cal.App.2d at p. 771.) Although the past decisions hover over the issue in the somewhat
wispy form of the figures of a Chagall painting, we can abstract from
Numerous other cases have upheld enforcement of agreements those decisions a clear and simple rule. (4) Link Int. HN▲ The fact
between nonmarital partners in factual settings essentially that a man and woman live together without marriage, and engage in
indistinguishable from the present case. ( In re Marriage of Foster a sexual relationship, does not in itself invalidate agreements
Shepardize
(1974) 42 Cal.App.3d 577 [117 Cal.Rptr. 49 Shepardize ]; Weak between them relating to their earnings, property, or expenses.
v. Weak, supra, 202 Cal.App.2d 632, 639 Shepardize ; Ferguson v. Neither is such an agreement invalid merely because the parties
Schuenemann (1959) 167 Cal.App.2d 413 Shepardize [334 P.2d 668 may have contemplated the creation or continuation of a nonmarital
Shepardize
]; Barlow v. Collins, supra, 166 Cal.App.2d 274, 277-278 relationship when they entered into it. Link P. Arg.▲ Link Quick
Shepardize
; Ferraro v. Ferraro (1956) 146 Cal.App.2d 849 Shepardize [304 Holding▲ Agreements between nonmarital partners fail only to the
P.2d 168 Shepardize ]; Cline v. Festersen (1954) 128 Cal.App.2d 380 extent that they rest upon a consideration of meretricious sexual
Shepardize
[275 P.2d 149 Shepardize ]; Profit v. Profit (1953) 117 services. Thus the rule asserted by defendant, that a contract fails if
Cal.App.2d 126 Shepardize [255 P.2d 25 Shepardize ]; Garcia v. Venegas, it is "involved in" or made "in contemplation" of a nonmarital
supra, 106 Cal.App.2d 364 Shepardize ; Padilla v. Padilla (1940) 38 relationship, cannot be reconciled with the decisions.
Cal.App.2d 319 Shepardize [100 P.2d 1093 Shepardize ]; Bacon v. Bacon
(1937) 21 Cal.App.2d 540 Shepardize [69 P.2d 884 Shepardize ].) n5 The three cases cited by defendant which have declined to enforce
contracts between nonmarital partners involved consideration that
Case Text Page 5

was expressly founded upon an illicit sexual services. In Hill v. Estate explain how -- unless the contract called for sexual relations -- the
of Westbrook, supra, 95 Cal.App.2d 599 Shepardize , the woman woman's employment as a companion and housekeeper could be
promised to keep house for the man, to live with him as man and contrary to good morals.
wife, and to bear his children; the man promised to provide for her in
his will, but died without doing so. Reversing a judgment for the [HN13] The alternative holding in Heaps v. Toy, supra, finding the
woman based on the reasonable value of her services, the Court of contract in that case contrary to good morals, is inconsistent with the
Appeal stated that "the action is predicated upon a claim which numerous California decisions upholding contracts between
seeks, among other things, the reasonable value of living with nonmarital partners when such contracts are not founded upon an
decedent in meretricious relationship and bearing him two children. . illicit consideration, and is therefore disapproved.
. . The law does not award compensation for living with a man as a
concubine and bearing him children. . . . As the judgment is at least The decisions in the Hill and Updeck cases thus demonstrate that
in part, for the value of the claimed services for which recovery [HN14] a contract between nonmarital partners, even if expressly
cannot be had, it must be reversed." (95 Cal.App.2d at p. 603.) Upon made in contemplation of a common living arrangement, is invalid
retrial, the trial court found that it could not sever the contract and only if sexual acts form an inseparable part of the consideration for
place an independent value upon the legitimate services performed the agreement. In sum, a court will not enforce a contract for the
by claimant. We therefore affirmed a judgment for the estate. ( Hill v. pooling of property and earnings if it is explicitly and inseparably
Shepardize
Estate of Westbrook (1952) 39 Cal.2d 458 [247 P.2d 19 based upon services as a paramour. The Court of Appeal opinion in
Shepardize
].) Hill, however, indicates that even if sexual services are part of the
contractual consideration, any severable portion of the contract
In the only other cited decision refusing to enforce a contract, supported by independent consideration will still be enforced.
Updeck v. Samuel (1954) 123 Cal.App.2d 264 Shepardize [266 P.2d
822 Shepardize ], the contract "was based on the consideration that the Link P. Arg.▲ The principle that a contract between nonmarital
parties live together as husband and wife." (123 Cal.App.2d at p. partners will be enforced unless expressly and inseparably based
267.) Viewing the contract as calling for adultery, the court held it upon an illicit consideration of sexual services not only represents
illegal. n6 the distillation of the decisional law, but also offers a far more precise
and workable standard than that advocated by defendant. Our recent
n6 decision in In re Marriage of Dawley (1976) 17 Cal.3d 342 Shepardize
[131 Cal.Rptr. 3 Shepardize , 551 P.2d 323 Shepardize ] offers a close
n6 Although not cited by defendant, the only California precedent analogy. Rejecting the contention that an antenuptial agreement is
which supports his position is Heaps v. Toy (1942) 54 Cal.App.2d invalid if the parties contemplated a marriage of short duration, we
178 Shepardize [128 P.2d 813 Shepardize ]. In that case the woman pointed out in Dawley that a standard based upon the subjective
promised to leave her job, to refrain from marriage, to be a contemplation of the parties is uncertain and unworkable; such a
companion to the man, and to make a permanent home for him; he test, we stated, "might invalidate virtually all antenuptial agreements
agreed to support the woman and her child for life. The Court of on the ground that the parties contemplated dissolution . . . but it
Appeal held the agreement invalid as a contract in restraint of provides no principled basis for determining which antenuptial
marriage ( Civ. Code, § 1676) and, alternatively, as "contrary to good agreements offend public policy and which do not." (17 Cal.3d 342,
morals" ( Civ. Code, § 1607). The opinion does not state that sexual 352 Shepardize .)
relations formed any part of the consideration for the contract, nor
Case Text Page 6

Similarly, in the present case a standard which inquires whether an of the spouse."
agreement is "involved" in or "contemplates" a nonmarital
relationship is vague and unworkable. Virtually all agreements In the present case Betty Marvin, the aggrieved spouse, had the
between nonmarital partners can be said to be "involved" in some opportunity to assert her community property rights in the divorce
Shepardize
sense in the fact of their mutual sexual relationship, or to action. (See Babbitt v. Babbitt (1955) 44 Cal.2d 289, 293
Shepardize
"contemplate" the existence of that relationship. Thus defendant's [282 P.2d 1 ].) The interlocutory and final decrees in that
proposed standards, if taken literally, might invalidate all agreements action fix and limit her interest. [HN17] Link P. Arg.▲ Link Quick
between nonmarital partners, a result no one favors. Moreover, Holding▲ Enforcement of the contract between plaintiff and
those standards offer no basis to distinguish between valid and defendant against property awarded to defendant by the divorce
invalid agreements. Link P. Arg.▲ By looking not to such uncertain decree will not impair any right of Betty's, and thus is not on that
tests, but only to the consideration underlying the agreement, we account violative of public policy. n8
provide the parties and the courts with a practical guide to determine
when an agreement between nonmarital partners should be n8
enforced.
n8 Defendant also contends that the contract is invalid as an
(5) Link P. Arg.▲ Defendant secondly relies upon the ground agreement to promote or encourage divorce. (See 1 Witkin,
suggested by the trial court: that the 1964 contract violated public Summary of Cal. Law (8th ed.) pp. 390-392 and cases there cited.)
policy because it impaired the community property rights of Betty The contract between plaintiff and defendant did not, however, by its
Marvin, defendant's lawful wife. Defendant points out that his terms require defendant to divorce Betty, nor reward him for so
earnings while living apart from his wife before rendition of the doing. Moreover, the principle on which defendant relies does not
interlocutory decree were community property under 1964 statutory apply when the marriage in question is beyond redemption (
Shepardize
law (former Civ. Code, §§ 169, 169.2) n7 and that defendant's Glickman v. Collins (1975) 13 Cal.3d 852, 858-859 [120
Shepardize Shepardize
agreement with plaintiff purported to transfer to her a half interest in Cal.Rptr. 76 , 533 P.2d 204 ]); whether or not
that community property. But whether or not defendant's contract defendant's marriage to Betty was beyond redemption when
with plaintiff exceeded his authority as manager of the community defendant contracted with plaintiff is obviously a question of fact
property (see former Civ. Code, § 172), defendant's argument fails which cannot be resolved by judgment on the pleadings.
for the reason that [HN15] an improper transfer of community
property is not void ab initio, but merely voidable at the instance of (6) Defendant's third contention is noteworthy for the lack of authority
the aggrieved spouse. See Ballinger v. Ballinger (1937) 9 Cal.2d advanced in its support. He contends that enforcement of the oral
330, 334 Shepardize [70 P.2d 629 Shepardize ; Trimble v. Trimble (1933) agreement between plaintiff and himself is barred by Civil Code
219 Cal. 340, 344 Shepardize [26 P.2d 477 Shepardize ].) section 5134, which provides that [HN18] "All contracts for marriage
settlements must be in writing. . . ." [HN19] A marriage settlement,
n7 however, is an agreement in contemplation of marriage in which
each party agrees to release or modify the property rights which
n7 Sections 169 and 169.2 were replaced in 1970 by Civil Code would otherwise arise from the marriage. (See Corker v. Corker
Shepardize
section 5118. In 1972 section 5118 was amended to provide that (1891) 87 Cal. 643, 648 [25 P. 922 Shepardize ].) The contract
[HN16] the earnings and accumulations of both spouses "while living at issue here does not conceivably fall within that definition, and thus
separate and apart from the other spouse, are the separate property is beyond the compass of section 5134. n9
Case Text Page 7

economic affairs as they choose, and no policy precludes the courts
n9 from enforcing such agreements.
n9 Our review of the many cases enforcing agreements between n10

nonmarital partners reveals that [HN20] the majority of such
agreements were oral. In two cases ( Ferguson v. Schuenemann, n10 Link Int. HN▲ A great variety of other arrangements are
supra, 167 Cal.App.2d 413 Shepardize ; Cline v. Festersen, supra, 128 possible. The parties might keep their earnings and property
Cal.App.2d 380 Shepardize ), the court expressly rejected defenses separate, but agree to compensate one party for services which
grounded upon the statute of frauds. benefit the other. They may choose to pool only part of their earnings
and property, to form a partnership or joint venture, or to hold
(7) Defendant finally argues that enforcement of the contract is property acquired as joint tenants or tenants in common, or agree to
barred by Civil Code section 43.5, subdivision (d), which provides any other such arrangement. (See generally Weitzman, Legal
that "No cause of action arises for . . . breach of promise of Regulation of Marriage: Tradition and Change (1974) 62 Cal.L.Rev.
marriage." This rather strained contention proceeds from the premise 1169.)
that a promise of marriage impliedly includes a promise to support
and to pool property acquired after marriage (see Boyd v. Boyd In the present instance, plaintiff alleges that the parties agreed to
(1964) 228 Cal.App.2d 374 Shepardize [39 Cal.Rptr. 400 Shepardize ]) to pool their earnings, that they contracted to share equally in all
the conclusion that pooling and support agreements not part of or property acquired, and that defendant agreed to support plaintiff. The
accompanied by promise of marriage are barred by the section. We terms of the contract as alleged do not rest upon any unlawful
conclude that section 43.5 is not reasonably susceptible to the consideration. Link Quick Holding▲ We therefore conclude that the
interpretation advanced by defendant, a conclusion demonstrated by complaint furnishes a suitable basis upon which the trial court can
the fact that since section 43.5 was enacted in 1939, numerous render declaratory relief. (See 3 Witkin, Cal. Procedure (2d ed.) pp.
cases have enforced pooling agreements between nonmarital 2335-2336.) The trial court consequently erred in granting
partners, and in none did court or counsel refer to section 43.5. defendant's motion for judgment on the pleadings.
(3b) In summary, we base our opinion on the principle that [HN21] 3. (8a) Plaintiff's complaint can be amended to state a cause of
Link Quick Holding▲ adults who voluntarily live together and engage action founded upon theories of implied contract or equitable relief.
in sexual relations are nonetheless as competent as any other
persons to contract respecting their earnings and property rights. Of Link P. Arg.▲ As we have noted, both causes of action in plaintiff's
course, they cannot lawfully contract to pay for the performance of complaint allege an express contract; neither assert any basis for
sexual services, for such a contract is, in essence, an agreement for relief independent from the contract. In In re Marriage of Cary, supra,
prostitution and unlawful for that reason. But they may agree to pool 34 Cal.App.3d 345 Shepardize , however, the Court of Appeal held that,
their earnings and to hold all property acquired during the [HN22] in view of the policy of the Family Law Act, property
relationship in accord with the law governing community property; accumulated by nonmarital partners in an actual family relationship
conversely they may agree that each partner's earnings and the should be divided equally. Upon examining the Cary opinion, the
property acquired from those earnings remains the separate property parties to the present case realized that plaintiff's alleged relationship
of the earning partner. n10 So long as the agreement does not rest with defendant might arguably support a cause of action independent
upon illicit meretricious consideration, the parties may order their of any express contract between the parties. The parties have
Case Text Page 8

therefore briefed and discussed the issue of the property rights of a conclude that [HN23] Link Quick Holding▲ the mere fact that a
nonmarital partner in the absence of an express contract. Although couple have not participated in a valid marriage ceremony cannot
our conclusion that plaintiff's complaint states a cause of action serve as a basis for a court's inference that the couple intend to keep
based on an express contract alone compels us to reverse the their earnings and property separate and independent; the parties'
judgment for defendant, resolution of the Cary issue will serve both intention can only be ascertained by a more searching inquiry into
to guide the parties upon retrial and to resolve a conflict presently the nature of their relationship.
manifest in published Court of Appeal decisions.
As we shall see from examination of the pre-Cary decisions, the truth
Both plaintiff and defendant stand in broad agreement that the law lies somewhere between the positions of plaintiff and defendant. The
should be fashioned to carry out the reasonable expectations of the classic opinion on this subject is Vallera v. Vallera, supra, 21 Cal.2d
parties. Plaintiff, however, presents the following contentions: that 681 Shepardize . Speaking for a four-member majority, Justice Traynor
the decisions prior to Cary rest upon implicit and erroneous notions posed the question: "whether a woman living with a man as his wife
of punishing a party for his or her guilt in entering into a nonmarital but with no genuine belief that she is legally married to him acquires
relationship, that such decisions result in an inequitable distribution by reason of cohabitation alone the rights of a co-tenant in his
of property accumulated during the relationship, and that Cary earnings and accumulations during the period of their relationship."
correctly held that the enactment of the Family Law Act in 1970 (21 Cal.2d at p. 684.) Citing Flanagan v. Capital Nat. Bank (1931)
overturned those prior decisions. Defendant in response maintains 213 Cal. 664 Shepardize [3 P.2d 307 Shepardize ], which held that [HN24] a
that the prior decisions merely applied common law principles of nonmarital "wife" could not claim that her husband's estate was
contract and property to persons who have deliberately elected to community property, the majority answered that question "in the
remain outside the bounds of the community property system. n11 negative." (Pp. 684-685.) Vallera explains that "Equitable
Cary, defendant contends, erred in holding that the Family Law Act considerations arising from the reasonable expectation of the
vitiated the force of the prior precedents. continuation of benefits attending the status of marriage entered into
in good faith are not present in such a case." (P. 685.) In the
n11 absence of express contract, Vallera concluded, the woman is
entitled to share in property jointly accumulated only "in the
n11 We note that a deliberate decision to avoid the strictures of the proportion that her funds contributed toward its acquisition." (P. 685.)
community property system is not the only reason that couples live Justice Curtis, dissenting, argued that the evidence showed an
together without marriage. Some couples may wish to avoid the implied contract under which each party owned an equal interest in
permanent commitment that marriage implies, yet be willing to share property acquired during the relationship.
equally any property acquired during the relationship; others may
fear the loss of pension, welfare, or tax benefits resulting from The majority opinion in Vallera did not expressly bar recovery based
marriage (see Beckman v. Mayhew, supra, 49 Cal.App.3d 529 upon an implied contract, nor preclude resort to equitable remedies.
Shepardize
). Others may engage in the relationship as a possible But Vallera's broad assertion that equitable considerations "are not
prelude to marriage. In lower socio-economic groups the difficulty present" in the case of a nonmarital relationship (21 Cal.2d at p. 685)
and expense of dissolving a former marriage often leads couples to led the Courts of Appeal to interpret the language to preclude
choose a nonmarital relationship; many unmarried couples may also recovery based on such theories. (See Lazzarevich v. Lazzarevich
Shepardize
incorrectly believe that the doctrine of common law marriage prevails (1948) 88 Cal.App.2d 708, 719 [200 P.2d 49 Shepardize ];
in California, and thus that they are in fact married. Consequently we Oakley v. Oakley (1947) 82 Cal.App.2d 188, 191-192 Shepardize [185
Case Text Page 9

P.2d 848 Shepardize ].) n12 conduct of the parties implied an agreement of partnership or joint
venture. (See Estate of Vargas (1974) 36 Cal.App.3d 714, 717-718
Shepardize
n12 [111 Cal.Rptr. 779 Shepardize ]; Sousa v. Freitas (1970) 10
Cal.App.3d 660, 666 Shepardize [89 Cal.Rptr. 485 Shepardize ].) Others
n12 The cases did not clearly determine whether a nonmarital permitted the spouse to recover the reasonable value of rendered
partner could recover in quantum meruit for the reasonable value of services, less the value of support received. (See Sanguinetti v.
services rendered. But when we affirmed a trial court ruling denying Sanguinetti (1937) 9 Cal.2d 95, 100-102 Shepardize [69 P.2d 845
recovery in Hill v. Estate of Westbrook, supra, 39 Cal.2d 458 Shepardize Shepardize
, 111 A.L.R. 342 Shepardize ].) n14 Finally, decisions affirmed
, we did so in part on the ground that whether the partner "rendered the power of a court to employ equitable principles to achieve a fair
her services because of expectation of monetary reward" (p. 462) division of property acquired during putative marriage. ( Coats v.
was a question of fact resolved against her by the trial court -- thus Coats (1911) 160 Cal. 671, 677-678 Shepardize [118 P. 441 Shepardize ];
implying that in a proper case the court would allow recovery based Caldwell v. Odisio (1956) 142 Cal.App.2d 732, 735 Shepardize [299
on quantum meruit. P.2d 14 Shepardize ].) n15
Consequently, when the issue of the rights of a nonmarital partner n13

reached this court in Keene v. Keene (1962) 57 Cal.2d 657 Shepardize
[21 Cal.Rptr. 593 Shepardize , 371 P.2d 329 Shepardize ], the claimant n13 [HN25] The Family Law Act, in Civil Code section 4452,
forwent reliance upon theories of contract implied in law or fact. classifies property acquired during a putative marriage as "'quasi-
Asserting that she had worked on her partner's ranch and that her marital property,'" and requires that such property be divided upon
labor had enhanced its value, she confined her cause of action to the dissolution of the marriage in accord with Civil Code section 4800.
claim that the court should impress a resulting trust on the property
derived from the sale of the ranch. The court limited its opinion n14
accordingly, rejecting her argument on the ground that the rendition
of services gives rise to a resulting trust only when the services aid in n14 [HN26] The putative spouse need not prove that he rendered
acquisition of the property, not in its subsequent improvement. (57 services in expectation of monetary reward in order to recover the
Cal.2d at p. 668.) Justice Peters, dissenting, attacked the majority's reasonable value of those services. ( Sanguinetti v. Sanguinetti,
Shepardize
distinction between the rendition of services and the contribution of supra, 9 Cal.2d 95, 100 .)
funds or property; he maintained that both property and services
furnished valuable consideration, and potentially afforded the ground n15
for a resulting trust.
n15 The contrast between principles governing nonmarital and
This failure of the courts to recognize an action by a nonmarital putative relationships appears most strikingly in Lazzarevich v.
partner based upon implied contract, or to grant an equitable Lazzarevich, supra, 88 Cal.App.2d 708 Shepardize . When Mrs.
remedy, contrasts with the judicial treatment of the putative spouse. Lazzarevich sued her husband for divorce in 1945, she discovered to
Prior to the enactment of the Family Law Act, no statute granted her surprise that she was not lawfully married to him. She
rights to a putative spouse. n13 The courts accordingly fashioned a nevertheless reconciled with him, and the Lazzareviches lived
variety of remedies by judicial decision. Some cases permitted the together for another year before they finally separated. The court
putative spouse to recover half the property on a theory that the awarded her recovery for the reasonable value of services rendered,
Case Text Page 10

less the value of support received, until she discovered the invalidity Thoughts on the Value of Homemakers' Services (1976) 10 Family
of the marriage, but denied recovery for the same services rendered L.Q. 101, 117-121.) And in Keene v. Keene, supra, 57 Cal.2d 657
Shepardize
after that date. , Justice Peters observed that if the man and woman "were
not illegally living together . . . it would be a plain business
Thus in summary, the cases prior to Cary exhibited a schizophrenic relationship and a contract would be implied." (Dis. opn. at p. 672.)
inconsistency. By enforcing an express contract between nonmarital
partners unless it rested upon an unlawful consideration, the courts Still another inconsistency in the prior cases arises from their
applied a common law principle as to contracts. Yet the courts treatment of property accumulated through joint effort. To the extent
disregarded the common law principle that holds that implied that a partner had contributed funds or property, the cases held that
contracts can arise from the conduct of the parties. n16 Refusing to the partner obtains a proportionate share in the acquisition, despite
enforce such contracts, the courts spoke of leaving the parties "in the the lack of legal standing of the relationship. ( Vallera v. Vallera,
position in which they had placed themselves" ( Oakley v. Oakley, supra, 21 Cal.2d at p. 685; see Weak v. Weak, supra, 202
Shepardize
supra, 82 Cal.App.2d 188, 192 ), just as if they were guilty Cal.App.2d 632, 639 Shepardize .) Yet courts have refused to recognize
parties in pari delicto. just such an interest based upon the contribution of services. As
Justice Curtis points out "Unless it can be argued that a woman's
n16 services as cook, housekeeper, and homemaker are valueless, it
would seem logical that if, when she contributes money to the
n16 "Contracts [HN27] may be express or implied. These terms purchase of property, her interest will be protected, then when she
however do not denote different kinds of contracts, but have contributes her services in the home, her interest in property
reference to the evidence by which the agreement between the accumulated should be protected." ( Vallera v. Vallera, supra, 21
parties is shown. If the agreement is shown by the direct words of Cal.2d 681, 686-687 Shepardize (dis. opn.); see Bruch, op. cit., supra,
the parties, spoken or written, the contract is said to be an express 10 Family L.Q. 101, 110-114; Article, Illicit Cohabitation: The Impact
one. But if such agreement can only be shown by the acts and of the Vallera and Keene Cases on the Rights of the Meretricious
conduct of the parties, interpreted in the light of the subject matter Spouse (1973) 6 U.C. Davis L.Rev. 354, 369-370; Comment (1972)
and of the surrounding circumstances, then the contract is an implied 48 Wash.L.Rev. 635, 641.)
Shepardize
one." ( Skelly v. Bristol Sav. Bank (1893) 63 Conn. 83 [26 A.
Shepardize
474 ], quoted in 1 Corbin, Contracts (1963) p. 41.) Thus, as Thus as of 1973, the time of the filing of In re Marriage of Cary,
Justice Schauer observed in Desny v. Wilder (1956) 46 Cal.2d 715 supra, 34 Cal.App.3d 345 Shepardize , the cases apparently held that a
Shepardize
[299 P.2d 257 Shepardize ], in a sense all contracts made in nonmarital partner who rendered services in the absence of express
fact, as distinguished from quasi-contractual obligations, are express contract could assert no right to property acquired during the
contracts, differing only in the manner in which the assent of the relationship. The facts of Cary demonstrated the unfairness of that
parties is expressed and proved. (See 46 Cal.2d at pp. 735-736.) rule.
Justice Curtis noted this inconsistency in his dissenting opinion in Janet and Paul Cary had lived together, unmarried, for more than
Vallera, pointing out that [HN28] "if an express agreement will be eight years. They held themselves out to friends and family as
enforced, there is no legal or just reason why an implied agreement husband and wife, reared four children, purchased a home and other
to share the property cannot be enforced." (21 Cal.2d 681, 686 property, obtained credit, filed joint income tax returns, and otherwise
Shepardize
; see Bruch, Property Rights of De Facto Spouses Including conducted themselves as though they were married. Paul worked
Case Text Page 11

outside the home, and Janet generally cared for the house and
children. n18 The court in Cary also based its decision upon an analysis of
Civil Code section 4452, which specifies the property rights of a
In 1971 Paul petitioned for "nullity of the marriage." n17 Following a putative spouse. Section 4452 states that if the "court finds that
hearing on that petition, the trial court awarded Janet half the either party or both parties believed in good faith that the marriage
property acquired during the relationship, although all such property was valid, the court should declare such party or parties to have the
was traceable to Paul's earnings. The Court of Appeal affirmed the status of a putative spouse, and, . . . shall divide, in accordance with
award. Section 4800, that property acquired during the union . . . . " Since
section 4800 requires an equal division of community property, Cary
n17 interpreted section 4452 to require an equal division of the property
of a putative marriage, so long as one spouse believed in good faith
n17 The Court of Appeal opinion in In re Marriage of Cary, supra that the marriage was valid. Thus under section 4452, Cary
Shepardize
, does not explain why Paul Cary filed his action as a petition concluded, the "guilty spouse" (the spouse who knows the marriage
for nullity. Briefs filed with this court, however, suggest that Paul may is invalid) has the same right to half the property as does the
have been seeking to assert rights as a putative spouse. In the "innocent" spouse.
present case, on the other hand, neither party claims the status of an
actual or putative spouse. Under such circumstances an action to Cary then reasoned that if the "guilty" spouse to a putative marriage
adjudge "the marriage" in the instant case a nullity would be is entitled to one-half the marital property, the "guilty" partner in a
pointless and could not serve as a device to adjudicate contract and nonmarital relationship should also receive one-half of the property.
property rights arising from the parties' nonmarital relationship. Otherwise, the court stated, "We should be obliged to presume a
Accordingly, plaintiff here correctly chose to assert her rights by legislative intent that a person, who by deceit leads another to
means of an ordinary civil action. believe a valid marriage exists between them, shall be legally
guaranteed half of the property they acquire even though most, or
Reviewing the prior decisions which had denied relief to the all, may have resulted from the earnings of the blameless partner. At
homemaking partner, the Court of Appeal reasoned that those the same time we must infer an inconsistent legislative intent that
decisions rested upon a policy of punishing persons guilty of two persons who, candidly with each other, enter upon an unmarried
cohabitation without marriage. The Family Law Act, the court family relationship, shall be denied any judicial aid whatever in the
observed, aimed to eliminate fault or guilt as a basis for dividing assertion of otherwise valid property rights." (34 Cal.App.3d at p.
marital property. But once fault or guilt is excluded, the court 352.)
reasoned, nothing distinguishes the property rights of a nonmarital
"spouse" from those of a putative spouse. Since the latter is entitled This reasoning in Cary has been criticized by commentators. (See
to half the "'quasi marital property'" ( Civ. Code, § 4452), the Court of Note, op. cit., supra, 25 Hastings L.J. 1226, 1234-1235; Comment, In
Appeal concluded that, giving effect to the policy of the Family Law re Marriage of Carey [sic]: The End of the Putative-Meretricious
Act, a nonmarital cohabitator should also be entitled to half the Spouse Distinction in California (1975) 12 San Diego L.Rev. 436,
property accumulated during an "actual family relationship." (34 444-446.) The commentators note that Civil Code section 4455
Cal.App.3d at p. 353.) n18 provides that an "innocent" party to a putative marriage can recover
spousal support, from which they infer that the Legislature intended
n18 to give only the "innocent" spouse a right to one-half of the quasi-
Case Text Page 12

marital property under section 4452.
n19 Despite the extensive material available on the legislative history
We need not now resolve this dispute concerning the interpretation of the Family Law Act neither Cary nor plaintiff cites any reference
of section 4452. [HN29] Even if Cary is correct in holding that a which suggests that the Legislature ever considered the issue of the
"guilty" putative spouse has a right to one-half of the marital property, property rights of nonmarital partners, and our independent
it does not necessarily follow that a nonmarital partner has an examination has uncovered no such reference.
identical right. In a putative marriage the parties will arrange their
economic affairs with the expectation that upon dissolution the But although we reject the reasoning of Cary and Atherley, we share
property will be divided equally. If a "guilty" putative spouse receives the perception of the Cary and Atherley courts that the application of
one-half of the property under section 4452, no expectation of the former precedent in the factual setting of those cases would work an
"innocent" spouse has been frustrated. In a nonmarital relationship, unfair distribution of the property accumulated by the couple. Justice
on the other hand, the parties may expressly or tacitly determine to Friedman in Beckman v. Mayhew, supra, 49 Cal.App.3d 529, 535
Shepardize
order their economic relationship in some other manner, and to , also questioned the continued viability of our decisions in
impose community property principles regardless of such Vallera and Keene; commentators have argued the need to
understanding may frustrate the parties' expectations. reconsider those precedents. n20 We should not, therefore, reject
the authority of Cary and Atherley without also examining the
Cary met with a mixed reception in other appellate districts. In Estate deficiencies in the former law which led to those decisions.
Shepardize
of Atherley, supra, 44 Cal.App.3d 758 , the Fourth District
agreed with Cary that under the Family Law Act a nonmarital partner n20
in an actual family relationship enjoys the same right to an equal
division of property as a putative spouse. In Beckman v. Mayhew, n20 See Bruch, op. cit., supra, 10 Family L.Q. 101, 113; Article, op.
supra, 49 Cal.App.3d 529 Shepardize , however, the Third District cit., supra, 6 U.C. Davis L.Rev. 354; Comment (1975) 6 Golden Gate
rejected Cary on the ground that the Family Law Act was not L.Rev. 179, 197-201; Comment, op. cit., supra, 12 San Diego L.Rev.
intended to change California law dealing with nonmarital 436; Note, op. cit., supra, 25 Hastings L.J. 1226, 1246.
relationships.
The principal reason why the pre-Cary decisions result in an unfair
(9) If Cary is interpreted as holding that [HN30] the Family Law Act distribution of property inheres in the court's refusal to permit a
requires an equal division of property accumulated in nonmarital nonmarital partner to assert rights based upon accepted principles of
"actual family relationships," then we agree with Beckman v. implied contract or equity. We have examined the reasons advanced
Mayhew that Cary distends the act. No language in the Family Law to justify this denial of relief, and find that none have merit.
Act addresses the property rights of nonmarital partners, and nothing
in the legislative history of the act suggests that the Legislature First, we note that the cases denying relief do not rest their refusal
considered that subject. n19 The delineation of the rights of upon any theory of "punishing" a "guilty" partner. Indeed, to the
nonmarital partners before 1970 had been fixed entirely by judicial extent that denial of relief "punishes" one partner, it necessarily
decision; we see no reason to believe that the Legislature, by rewards the other by permitting him to retain a disproportionate
enacting the Family Law Act, intended to change that state of affairs. amount of the property. [HN31] Concepts of "guilt" thus cannot justify
an unequal division of property between two equally "guilty" persons.
n19 n21
Case Text Page 13

putatively married persons in order to apply principles of implied
n21 contract, or extend equitable remedies; we need to treat them only
as we do any other unmarried persons. n22
n21 Justice Finley of the Washington Supreme Court explains:
"Under such circumstances [the dissolution of a nonmarital n22
relationship], this court and the courts of other jurisdictions have, in
effect, sometimes said, 'We will wash our hands of such disputes. n22 In some instances a confidential relationship may arise between
The parties should and must be left to their own devices, just where nonmarital partners, and economic transactions between them
they find themselves.' To me, such pronouncements seem overly should be governed by the principles applicable to such
fastidious and a bit fatuous. They are unrealistic and, among other relationships.
things, ignore the fact that an unannounced (but nevertheless
effective and binding) rule of law is inherent in any such terminal The remaining arguments advanced from time to time to deny
statements by a court of law. The unannounced but inherent rule is remedies to the nonmarital partners are of less moment. [HN32]
simply that the party who has title, or in some instances who is in There is no more reason to presume that services are contributed as
possession, will enjoy the rights of ownership of the property a gift than to presume that funds are contributed as a gift; in any
concerned. The rule often operates to the great advantage of the event the better approach is to presume, as Justice Peters
cunning and the shrewd, who wind up with possession of the suggested, "that the parties intend to deal fairly with each other." (
Shepardize
property, or title to it in their names, at the end of a so-called Keene v. Keene, supra, 57 Cal.2d 657, 674 (dissenting
meretricious relationship. So, although the courts proclaim that they opn.); see Bruch, op. cit., supra, 10 Family L.Q. 101, 113.)
will have nothing to do with such matters, the proclamation in itself
establishes, as to the parties involved, an effective and binding rule The argument that granting remedies to the nonmarital partners
of law which tends to operate purely by accident or perhaps by would discourage marriage must fail; as Cary pointed out, "with
reason of the cunning, anticipatory designs of just one of the parties." equal or greater force the point might be made that the pre-1970 rule
Shepardize
( West v. Knowles (1957) 50 Wn.2d 311 [311 P.2d 689, 692 was calculated to cause the income-producing partner to avoid
Shepardize
] (conc. opn.).) marriage and thus retain the benefit of all of his or her accumulated
earnings." (34 Cal.App.3d at p. 353.) Although we recognize the well-
Other reasons advanced in the decisions fare no better. The established public policy to foster and promote the institution of
principal argument seems to be that "[equitable] considerations marriage (see Deyoe v. Superior Court (1903) 140 Cal. 476, 482
Shepardize
arising from the reasonable expectation of . . . benefits attending the [74 P. 28 Shepardize ]), perpetuation of judicial rules which
status of marriage . . . are not present [in a nonmarital relationship]." result in an inequitable distribution of property accumulated during a
( Vallera v. Vallera, supra, 21 Cal.2d at p. 685.) But, although parties nonmarital relationship is neither a just nor an effective way of
to a nonmarital relationship obviously cannot have based any carrying out that policy.
expectations upon the belief that they were married, other
expectations and equitable considerations remain. The parties may In summary, we believe that the prevalence of nonmarital
well expect that property will be divided in accord with the parties' relationships in modern society and the social acceptance of them,
own tacit understanding and that in the absence of such marks this as a time when our courts should by no means apply the
understanding the courts will fairly apportion property accumulated doctrine of the unlawfulness of the so-called meretricious relationship
through mutual effort. We need not treat nonmarital partners as to the instant case. As we have explained, the nonenforceability of
Case Text Page 14

agreements expressly providing for meretricious conduct rested n24
upon the fact that such conduct, as the word suggests, pertained to
and encompassed prostitution. To equate the nonmarital relationship n24 [HN34] We do not seek to resurrect the doctrine of common law
of today to such a subject matter is to do violence to an accepted marriage, which was abolished in California by statute in 1895. (See
Shepardize
and wholly different practice. Norman v. Thomson (1898) 121 Cal. 620, 628 [54 P. 143
Shepardize
]; Estate of Abate (1958) 166 Cal.App.2d 282, 292 Shepardize
We are aware that many young couples live together without the [333 P.2d 200 Shepardize ].) Thus we do not hold that plaintiff and
solemnization of marriage, in order to make sure that they can defendant were "married," nor do we extend to plaintiff the rights
successfully later undertake marriage. This trial period, n23 which the Family Law Act grants valid or putative spouses; we hold
preliminary to marriage, serves as some assurance that the marriage only that [HN35] she has the same rights to enforce contracts and to
will not subsequently end in dissolution to the harm of both parties. assert her equitable interest in property acquired through her effort
We are aware, as we have stated, of the pervasiveness of as does any other unmarried person.
nonmarital relationships in other situations.
Link P. Arg.▲ Link Quick Holding▲ The [HN36] courts may inquire
n23 into the conduct of the parties to determine whether that conduct
demonstrates an implied contract or implied agreement of
n23 Toffler, Future Shock (Bantam Books, 1971) page 253. partnership or joint venture (see Estate of Thornton (1972) 81 Wn.2d
72 Shepardize [499 P.2d 864 Shepardize ]), or some other tacit
The mores of the society have indeed changed so radically in regard understanding between the parties. The courts may, when
to cohabitation that we cannot impose a standard based on alleged appropriate, employ principles of constructive trust (see Omer v.
moral considerations that have apparently been so widely Omer (1974) 11 Wash.App. 386 Shepardize [523 P.2d 957 Shepardize ]) or
abandoned by so many. Lest we be misunderstood, however, we resulting trust (see Hyman v. Hyman (Tex.Civ.App. 1954) Shepardize
take this occasion to point out that the structure of society itself 275 S.W.2d 149 Shepardize ). Finally, a nonmarital partner may recover
largely depends upon the institution of marriage, and nothing we in quantum meruit for the reasonable value of household services
have said in this opinion should be taken to derogate from that rendered less the reasonable value of support received if he can
institution. The joining of the man and woman in marriage is at once show that he rendered services with the expectation of monetary
the most socially productive and individually fulfilling relationship that reward. (See Hill v. Estate of Westbrook, supra, 39 Cal.2d 458, 462
Shepardize
one can enjoy in the course of a lifetime. .) n25
(8b) We conclude that the judicial barriers that may stand in the way n25
of a policy based upon the fulfillment of the reasonable expectations
of the parties to a nonmarital relationship should be removed. As we n25 Our opinion does not preclude the evolution of additional
have explained, the courts now hold that express agreements will be equitable remedies to protect the expectations of the parties to a
enforced unless they rest on an unlawful meretricious consideration. nonmarital relationship in cases in which existing remedies prove
We add that [HN33] in the absence of an express agreement, the inadequate; the suitability of such remedies may be determined in
courts may look to a variety of other remedies in order to protect the later cases in light of the factual setting in which they arise.
parties' lawful expectations. n24
Link Quick Holding▲ Since we have determined that plaintiff's
Case Text Page 15

complaint states a cause of action for breach of an express contract, The majority broadly indicate that a party to a meretricious
and, as we have explained, can be amended to state a cause of relationship may recover on the basis of equitable principles and in
action independent of allegations of express contract, n26 we must quantum meruit. However, the majority fail to advise us of the
conclude that the trial court erred in granting defendant a judgment circumstances permitting recovery, limitations on recovery, or
on the pleadings. whether their numerous remedies are cumulative or exclusive.
Conceivably, under the majority opinion a party may recover half of
n26 the property acquired during the relationship on the basis of general
equitable principles, recover a bonus based on specific equitable
n26 We do not pass upon the question whether, in the absence of an considerations, and recover a second bonus in quantum meruit.
express or implied contractual obligation, a party to a nonmarital
relationship is entitled to support payments from the other party after The general sweep of the majority opinion raises but fails to answer
the relationship terminates. several questions. First, because the Legislature specifically
excluded some parties to a meretricious relationship from the equal
The judgment is reversed and the cause remanded for further division rule of Civil Code section 4452, is this court now free to
proceedings consistent with the views expressed herein. n27 create an equal division rule? Second, upon termination of the
relationship, is it equitable to impose the economic obligations of
n27 lawful spouses on meretricious parties when the latter may have
rejected matrimony to avoid such obligations? Third, does not
n27 We wish to commend the parties and amici for the exceptional application of equitable principles -- necessitating examination of the
quality of the briefs and argument in this case. conduct of the parties -- violate the spirit of the Family Law Act of
1969, designed to eliminate the bitterness and acrimony resulting
CONCUR: CLARK (In Part) from the former fault system in divorce? Fourth, will not application of
equitable principles reimpose upon trial courts the unmanageable
DISSENT: CLARK (In Part) burden of arbitrating domestic disputes? Fifth, will not a quantum
meruit system of compensation for services -- discounted by benefits
DISSENT: received -- place meretricious spouses in a better position than
lawful spouses? Sixth, if a quantum meruit system is to be allowed,
Link Concur/Dissent▲ CLARK, J., Concurring and Dissenting. The does fairness not require inclusion of all services and all benefits
majority opinion properly permit recovery on the basis of either regardless of how difficult the evaluation?
express or implied in fact agreement between the parties. These
being the issues presented, their resolution requires reversal of the When the parties to a meretricious relationship show by express or
judgment. Here, the opinion should stop. implied in fact agreement they intend to create mutual obligations,
the courts should enforce the agreement. However, in the absence
This court should not attempt to determine all anticipated rights, of agreement, we should stop and consider the ramifications before
duties and remedies within every meretricious relationship -- creating economic obligations which may violate legislative intent,
particularly in vague terms. Rather, these complex issues should be contravene the intention of the parties, and surely generate undue
determined as each arises in a concrete case. burdens on our trial courts.
Case Text Page 16

By judicial overreach, the majority perform a nunc pro tunc marriage,
dissolve it, and distribute its property on terms never contemplated
by the parties, case law or the Legislature.
Case Text Page 17

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Enhanced Case Summary

© 2007 LexisNexis™, a division of Reed Elsevier Inc. All rights reserved.

Enhanced Case Summary

Notable Case Analysis

Enhanced Procedural Posture

The trial court denied plaintiff’s motions, and she appealed.

Plaintiff-appellant female cohabitant -- Michelle Marvin

Case in Brief Page 1

Defendant-respondent male cohabitant -- Lee Marvin

Case in Brief Page 2

Quick Holding Bullets

Case in Brief Page 3

II. Superior Court of Los Angeles County

III. Supreme Court of California

Case in Brief Page 4

Dissenting/Concurring Opinion Overview

Dissenting/Concurring Opinion by Judge Clark

Case in Brief Page 5

Expanded Headnote Coverage

Case in Brief Page 6

Case in Brief Page 7

Case in Brief Page 8

Case in Brief Page 9

Status of the Case

Comparative Case Content

Topic: Protection of the expectations of cohabitants in a nonmarital relationship

Holding that equitable remedies were available

Case in Brief Page 10

Watts v. Watts, 137 Wis. 2d 506 Shepardize (Wis. 1987)

Kozlowski v. Kozlowski, 80 N.J. 378 Shepardize (N.J. 1979)

Cook v. Cook, 142 Ariz. 573 Shepardize (Ariz. 1984)

Boland v. Catalano, 202 Conn. 333 Shepardize (Conn. 1987)

Kinkenon v. Hue, 207 Neb. 698 Shepardize (Neb. 1981)

Case in Brief Page 11

Hay v. Hay, 100 Nev. 196 Shepardize (Nev. 1984)

Dominguez v. Cruz, 95 N.M. 1 Shepardize (N.M. Ct. App. 1980)

Morone v. Morone, 50 N.Y.2d 481 Shepardize (N.Y. 1980)

Latham v. Latham, 274 Ore. 421 Shepardize (Or. 1976)

Small v. Harper, 638 S.W.2d 24 Shepardize (Tex. App. 1982)

Case in Brief Page 12

Norton v. McOsker, 407 F.3d 501 Shepardize (1st Cir. 2005)

Case in Brief Page 13

Wilcox v. Trautz, 427 Mass. 326, 332 Shepardize (Mass. 1998)

In re Estate of Eriksen, 337 N.W.2d 671 Shepardize (Minn. 1983)

In re Estate of Palmen, 588 N.W.2d 493 Shepardize (Minn. 1999)

Zaremba v. Cliburn, 949 S.W.2d 822 Shepardize (Tex. App. 1997)

Related Treatise Content

California Civil Discovery § 12.17 Marriage Requirement

Case in Brief Page 14

Case in Brief Page 15

15-79 Corbin on Contracts § 79.3 Defining Public Policy

Case in Brief Page 16

2-42 Valuation and Distribution of Marital Property § 42.40

47-28 USC Law School Institutes On Major Tax Planning P 2809

Related Restatements and/or Model Codes

Restat 2d of Contracts, § 19 Conduct as Manifestation of Assent

Case in Brief Page 17

Restat 2d of Contracts, § 179 Bases of Public Policies against Enforcement

Restat 2d of Contracts, § 189 Promise in Restraint of Marriage

Restat 2d of Prop: Donative Transfers, § 6.1 Restraints on Any First Marriage

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