Eugene E. Kinsey, Attorney at Law

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(See Attorney Fee Agreement For "Marvin" Actions)

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General California Law Regarding Nonmarital (Marivin) Relationships

Family Code property and support rights, obligations and remedies are predicated on the existence of a valid marriage or registered domestic partnership or, if either such union is invalid, "putative" spouse/partner status. Simply living together as alleged husband and wife cannot give rise to a "marriage" or other legal marriage-like union under California (or federal) law.

The concept of "common law marriage" has long been abolished in California.

Consequently, nonmarital cohabitation does not itself confer any rights or obligations under the Family Code. Any rights and obligations arising from the relationship cannot be adjudicated in a Family Code action.

No Automatic Property Rights Under The Family Code: No community, quasi-community or "quasi-marital" property rights, interests or obligations accrue during the term of a purely nonmarital cohabitation relationship that has not become a registered domestic partnership. [Marvin v. Marvin, 18 Cal.3d at 681, 134 Cal.Rptr. at 829 & fn. 19]

No Automatic Support Rights Under The Family Code: There is no statutory duty of support as between nonmarital cohabitants who have not established a domestic partnership. Any right between the cohabitants to "spousal-type" support (whether during or upon and after termination of the relationship) may arise only from an express or implied agreement.

Money And Property Claims Between Nonmarital Cohabitants

The fact of nonmarital cohabitation is not itself a barrier to the judicial recognition and enforcement of express and implied agreements between the parties. They have the same right to enforce contracts and assert equitable rights and interests as do any other unmarried persons. And courts may also look to a "variety of other remedies" in order to protect the parties' lawful expectations. [Marvin v. Marvin (1976) 18 Cal.3d 660, 684, 134 Cal.Rptr. 815, 831 & fn. 24]

Thus, unmarried cohabitants can avail themselves of the following traditional legal and equitable remedies to enforce properly-founded property, support and other financial claims and obligations arising out of their relationship:

Breach Of Express Contract: Action for breach of express contract (e.g., to pool earnings and hold acquisitions in accord with community property law, or to hold earnings and acquisitions as separate property; to provide support, etc.). [Marvin v. Marvin, supra, 18 Cal.3d at 674-675, 134 Cal.Rptr. at 825; see Cochran v. Cochran (1997) 56 Cal.App.4th 1115, 1118, 66 Cal.Rptr.2d 337, 339--alleged agreement to share property acquisitions equally and to provide "lifetime support"]

Breach Of Implied Contract: Action on an implied contract based upon the parties' conduct (e.g., to share earnings and acquisitions or to provide support). [Marvin v. Marvin, supra, see Friedman v. Friedman (1993) 20 Cal.App.4th 876, 887-888, 24 Cal.Rptr.2d 892, 899--alleged implied agreement for support upon termination of relationship]

Partnership - Joint Venture Theories: Action to enforce a partnership or joint venture agreement (express or implied). [Marvin v. Marvin, supra]

Constructive Trust: Action to impose a constructive trust, resulting trust or equitable lien. [Marvin v. Marvin, supra]

Declaratory Relief: Action for declaratory relief to establish rights under a cohabitation agreement. [Marvin v. Marvin, supra; see Byrne v. Laura (1997) 52 Cal.App.4th 1054, 1073, 60 Cal.Rptr.2d 908, 920]

Specific Performance: Action for specific performance of a property agreement (where damages are not an adequate remedy; e.g., real property (Ca Civil § 3387) or personal property with sentimental value. [See Byrne v. Laura, supra, 52 Cal.App.4th at 1073, 60 Cal.Rptr.2d at 920--Marvin claimant could properly elect to pursue specific performance of property agreement with respect to residence and family heirlooms]

Quantum Meruit: Action in quantum meruit to recover the reasonable value of services rendered (household, business or other legally-compensable services), less the reasonable value of support received, upon proof the services were rendered "with the expectation of monetary reward." [Marvin v. Marvin, supra; see Maglica v. Maglica (1998) 66 Cal.App.4th 442, 449, 78 Cal.Rptr.2d 101, 104]

Other Equitable Remedies: Where existing remedies prove "inadequate," trial courts may fashion additional equitable remedies to protect the parties' "reasonable expectations." "[T]he suitability of such remedies may be determined in later cases in light of the factual setting in which they arise." [Marvin v. Marvin, supra]

Cohabitation Requirement

In the absence of cohabitation, an an express or implied agreement to provide financial support or share earnings and accumulations is likely to be unenforceable as lacking lawful consideration. [Bergen v. Wood (1993) 14 Cal.App.4th 854, 858, 18 Cal.Rptr.2d 75, 77; see Taylor v. Fields (1986) 178 Cal.App.3d 653, 663, 224 Cal.Rptr. 186, 192--Marvin recovery requires showing of "stable" relationship arising out of cohabitation; Della Zoppa v. Della Zoppa (2001) 86 Cal.App.4th 1144, 1150, 103 Cal.Rptr.2d 901, 905]

Sexual Services: An enforceable Marvin claim cannot rest solely on the rendition of sexual services, which itself is unlawful consideration. Consequently, where the parties did not cohabit, any purported agreement between them will probably be un-enforceable because it would lack any consideration independent of the sexual aspect of the relationship. [Bergen v. Wood, supra; Taylor v. Fields, supra]

Part-Time Cohabitation: At least one court has concluded that full-time living together is not essential to demonstrate therequisite cohabitation; the Marvin rationale may be satisfied "in appropriate cases" by a part-time cohabitation arrangement. [Cochran v. Cochran (2001) 89 Cal.App.4th 283, 291, 106 Cal.Rptr.2d 899, 905]

"The purpose of Marvin was to permit parties to a significant and stable relationship to contract concerning their earnings and property rights . . . To require nothing short of full-time cohabitation before enforcing an agreement would defeat the reasonable expectations of persons who may clearly enjoy a significant and stable relationship arising from cohabitation, albeit less than a full-time living arrangement. For instance, it would exclude otherwise valid support agreements made by parties who, perhaps because their jobs are geographically far apart, maintain a part-time residence for one party, and also a second residence where at times they live jointly. Certainly the rationale of Marvin does not support such a result." [Cochran v. Cochran, supra]

Statutes Of Limitation

Regardless of the merits of a "Marvin claim," litigation will be futile if too much time has passed between accrual of the cause of action and the decision to do something about it.

Contract Claims: Contract claims are subject to a four-year statute of limitations for breach of a written contract (Ca Civ Pro § 337(1)) and two years for breach of an oral or implied contract (Ca Civ Pro § 339(1)). The contract cause of action accrues at the time of the breach--i.e., when the party charged with the duty to perform under the contract ceases to perform.

Most Marvin agreements are breached, thereby commencing the limitations period, when the nonmarital relationship terminates by one party leaving the other. This is because nonperformance under the contract usually coincides with the end of the nonmarital relationship. However, despite the parties' separation, there is no breach of contract if the obligor continues to perform as required by the contract. In that case, a Marvin contract cause of action does not accrue until the agreed-upon performance stops. Thus, the statute of limitations for breach of a Marvin agreement to provide support does not commence to run until the support payments cease . . . notwithstanding that the parties may have separated years earlier.

Fraud Claims: A nonmarital cohabitant's fraud claim (e.g., allegation other party intentionally misrepresented he or she would share all property and accumulations equally) must be commenced within three years of discovery of the facts constituting the fraud. [Ca Civ Pro § 338(d)] Typically, the cause of action accrues on the date the parties separated for good, because as of that date it will usually be apparent the alleged promises have not been, and will not be, performed.

Quantum Meruit Claims: The Ca Civ Pro § 339(1) two-year statute of limitations applies to quantum meruit claims (action upon an obligation not founded upon a written instrument). Accrual of a quantum meruit cause of action must be decided on a case-by-case basis. The result turns on when, under the facts, the claimant had an expectation for payment. The expectation of payment generally will coincide with termination of the nonmarital cohabitation relationship, so that the statute will not commence to run until the parties split up (or one of them dies).

Other Equitable Claims: Other types of equitable claims (e.g., action for constructive, resulting or equitable trust) are usually subject to a four-year statute of limitations. [Ca Civ Pro § 343--action for relief not otherwise provided for in Ca Civ Pro § 335 et seq.; Whorton v. Dillingham (1988) 202 Cal.App.3d 447, 457, 248 Cal.Rptr. 405, 411]

Burden Of Proof

When a nonmarital property or support claim is rooted in contract, express or implied (as opposed to relief in equity), normal rules of contract enforcement apply. This means the claimant must carry the usual burden of proving the agreement to share property, provide support, etc.

General Rule - Preponderance Of The Evidence: As a general rule, the party asserting the contract must prove the existence of the contract by a preponderance of the evidence; this is the burden of proof ordinarily applicable in civil actions generally. [Ca Evid § 115] Thus, the Marvin claimant must carry the burden of proving the existence of the alleged fact (parties' agreement to pool earnings, split profits, furnish support, etc.) "is more probable than not."

Higher Burden To Rebut Record Title - Clear And Convincing Proof: However, a Marvin claimant asserting an interest in property contrary to record title bears a heavier evidentiary burden: There is a statutory presumption that the owner of legal title to the property is the owner of the full beneficial title. This presumption may be rebutted only by clear and convincing proof. [Ca Evid § 662]

Therefore, property of a nonmarital relationship held in the name of one of the parties alone presumptively belongs to that party in full. If the other cohabitant alleges an agreement for an interest in the property, he or she bears the burden of proving that agreement by "clear and convincing evidence"--i.e., evidence "so clear as to leave no substantial doubt in the mind of the trier of fact; it must be sufficiently strong to command the unhesitating assent of every reasonable mind." [Tannehill v. Finch, 188 Cal.App.3d at 228, 232 Cal.Rptr. at 751]

"Marvin" Remedies Available To Same Sex Partners

Nothing in Marvin limits nonmarital cohabitant remedies to opposite-sex partners or, indeed, to parties eligible to be married. That the Marvin Court intended no such distinction is indicated by the fact it refrained from using gender-oriented language, referring instead to "nonmarital partners"; and it would probably be an abuse of discretion for a court to refuse to entertain a Marvin suit simply because the parties are of the same sex.

Accordingly, express and implied agreements between same-sex cohabitants are no less enforceable than those between Marvin claimants of the opposite sex. The focus is not on the parties' gender, but on whether they in fact had an agreement supported by lawful consideration.


Attorney Fees & Costs

Full Service:
$300 per hour against a minimum fee of $3,000
See Attorney Fee Agreement For Marvin Actions