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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

News Recent News Coverage of the Case: Excerpts from several articles about the case Recent News Coverage of the Issue: Excerpts from several articles covering the issues Recent News Coverage of the Parties: Excerpts from several articles covering the parties

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Case Text

Case in Brief Page 1

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

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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.

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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▼

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• 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

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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

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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.

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[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. [HN13] The alternative holding in Heaps v. Toy, 128 P.2d 813 Shepardize (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. [HN18] See Cal. Civ. Code § 5134. Shepardize [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

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[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. [HN22] In view of the policy of the Family Law Act, Cal. Civ. Code § 400 Shepardize 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. [HN25] The Family Law Act, Cal. Civ. Code § 4452 Shepardize , 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

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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.

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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 Poe v. Estate of Levy, 411 So. 2d 253 Shepardize (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.

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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)

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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.

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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.

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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

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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

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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

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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.

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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.

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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.

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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.

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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.

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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.

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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

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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

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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

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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

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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

Case in Brief Page 28

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,

Case in Brief Page 29

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

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 had 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, 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

Case in Brief Page 30

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 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 ,

Case in Brief Page 31

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 had 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 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 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 (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 .

Case in Brief Page 32

Cal Fam Code § 2552 Shepardize Valuation date for assets and liabilities

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 had announced, as the public policy of the state, that concepts of "guilt," punishment therefor, "innocence," 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 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 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

Case in Brief Page 33

on the noninjured spouse, and whether a major portion if not the entirety of the award was 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 § 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.

Case in Brief Page 34

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.

Case in Brief Page 35

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.

Case in Brief Page 36

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Case Text Page 1

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 Superior Court of Los Angeles County, No. C-23303, William A. Munnell, Judge. DISPOSITION: The judgment is reversed and the cause remanded for further proceedings consistent with the views expressed herein. n27n27 n27 We wish to commend the parties and amici for the exceptional quality of the briefs and argument in this case. COUNSEL: Marvin M. Mitchelson, Donald N. Woldman, Robert M. Ross, Fleishman, McDaniel, Brown & Weston and David M. Brown for Plaintiff and Appellant. Jettie Pierce Selvig, Ruth Miller and Suzie S. Thorn as Amici Curiae on behalf of Plaintiff and Appellant. Goldman & Kagon, Mark A. Goldman and William R. Bishin for Defendant and Respondent. Herma Hill Kay, John Sutter, Doris Brin Walker and Treuhaft, Walker, Nawi & Hendon as Amici Curiae on behalf of Defendant and

Respondent. Isabella H. Grant and Livingston, Grant, Stone & Shenk as Amici Curiae. Opinion by Tobriner, J., with Wright, C. J., McComb, Mosk, Sullivan and Richardson, JJ., concurring. Separate concurring and dissenting opinion by Clark, J. OPINION: TOBRINER OPINION: During the past 15 years, there has been a substantial increase in the number of couples living together without marrying. n1 Such nonmarital relationships lead to legal controversy when one partner dies or the couple separates. Courts of Appeal, faced with the task of determining property rights in such cases, have arrived at conflicting positions: two cases ( In re Marriage of Cary (1973) 34 Cal.App.3d 345 Shepardize [109 Cal.Rptr. 862 Shepardize ]; Estate of Atherley (1975) 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 of the property according to community property principles, and one decision ( Beckman v. Mayhew (1975) 49 Cal.App.3d 529 Shepardize [122 Cal.Rptr. 604 Shepardize ]) has rejected that holding. We take this opportunity to resolve that controversy and to declare the principles which should govern distribution of property acquired in a nonmarital

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relationship.n1 n1 "The 1970 census figures indicate that today perhaps eight times as many couples are living together without being married as cohabited ten years ago." (Comment, In re Cary: A Judicial Recognition of Illicit Cohabitation (1974) 25 Hastings L.J. 1226 .) We conclude: (1) [HN1] The provisions of the Family Law Act do not govern the distribution of property acquired during a nonmarital relationship; such a relationship remains subject solely to judicial decision. (2) The [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. (3) [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. In the instant case plaintiff and defendant lived together for seven years without marrying; all property acquired during this period was taken in defendant's name. When plaintiff sued to enforce a contract under which she was entitled to half the property and to support payments, the trial court granted judgment on the pleadings for defendant, thus leaving him with all property accumulated by the couple during their relationship. Since the trial court denied plaintiff a trial on the merits of her claim, its decision conflicts with the principles stated above, and must be reversed. 1. The factual setting of this appeal. (1) [HN4] Since the trial court rendered judgment for defendant on the pleadings, we 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. (See Sullivan v. County of Los Angeles (1974) 12 Cal.3d 710, 714-715 Shepardize , fn. 3 [117 Cal.Rptr.

241 Shepardize , 527 P.2d 865 Shepardize ]; 4 Witkin, Cal. Procedure (2d ed. 1971) pp. 2817-2818.) We turn therefore to the specific allegations of the complaint. Plaintiff avers that in October of 1964 she and defendant "entered into an oral agreement" that while "the parties lived together they would combine their efforts and earnings and would share equally any and all property accumulated as a result of their efforts whether individual or combined." Furthermore, they agreed to "hold themselves out to the general public as husband and wife" and that "plaintiff would further render her services as a companion, homemaker, housekeeper and cook to . . . defendant." Shortly thereafter plaintiff agreed to "give up her lucrative career as an entertainer [and] singer" in order to "devote her full time to defendant . . . as a companion, homemaker, housekeeper and cook;" in return defendant agreed to "provide for all of plaintiff's financial support and needs for the rest of her life." Plaintiff alleges that she lived with defendant from October of 1964 through May of 1970 and fulfilled her obligations under the agreement. During this period the parties as a result of their efforts and earnings acquired in defendant's name substantial real and personal property, including motion picture rights worth over $ 1 million. In May of 1970, however, defendant compelled plaintiff to leave his household. He continued to support plaintiff until November of 1971, but thereafter refused to provide further support. On the basis of these allegations plaintiff asserts two causes of action. The first, for declaratory relief, asks the court to determine her contract and property rights; the second seeks to impose a constructive trust upon one half of the property acquired during the course of the relationship. Defendant demurred unsuccessfully, and then answered the complaint. (See fn. 2.) (2) Following extensive discovery and pretrial proceedings, the case came to trial. n2 Defendant renewed his attack on the complaint by a motion to dismiss. Since the parties had

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stipulated that defendant's marriage to Betty Marvin did not terminate until the filing of a final decree of divorce in January 1967, the trial court treated defendant's motion as one for judgment on the pleadings augmented by the stipulation. n2 n2 When the case was called for trial, plaintiff asked leave to file an amended complaint. The proposed complaint added two causes of action for breach of contract against Santa Ana Records, a corporation not a party to the action, asserting that Santa Ana was an alter ego of defendant. The court denied leave to amend, and plaintiff claims that the ruling was an abuse of discretion. We disagree; plaintiff's argument was properly rejected by the Court of Appeal in the portion of its opinion quoted below. No error was committed in denial of plaintiff's motion, made on the opening day set for trial, seeking leave to file a proposed amended complaint which would have added two counts and a new defendant to the action. As stated by plaintiff's counsel at the hearing, "[There] is no question about it that we seek to amend the Complaint not on the eve of trial but on the day of trial." In Hayutin v. Weintraub, 207 Cal.App.2d 497 Shepardize [24 Cal.Rptr. 761 Shepardize ], the court said at pages 508-509 in respect to such [HN5] a motion that had it been granted, it "would have required a long continuance for the purpose of canvassing wholly new factual issues, a redoing of the elaborate discovery procedures previously had, all of which would have imposed upon defendant and his witnesses substantial inconvenience . . . and upon defendant needless and substantial additional expense. . . . The court did not err in denying leave to file the proposed amended complaint." (See also: Nelson v. Specialty Records, Inc., 11 Cal.App.3d 126, 138-139 Shepardize [89 Cal.Rptr. 540 Shepardize ]; Moss Estate Co. v. Adler, 41 Cal.2d 581, 585 Shepardize [261 P.2d 732 Shepardize ]; Vogel v. Thrifty Drug Co., 43 Cal.2d 184, 188 Shepardize [272 P.2d 1 Shepardize ].) "The [HN6] ruling of the trial judge will not be disturbed upon appeal absent a showing by appellant of a clear abuse of discretion.

[Citations.]" ( Nelson v. Specialty Records, Inc., supra, 11 Cal.App.3d at p. 139.) No such showing here appears. After hearing argument the court granted defendant's motion and entered judgment for defendant. Plaintiff moved to set aside the judgment and asked leave to amend her complaint to allege that she and defendant reaffirmed their agreement after defendant's divorce was final. The trial court denied plaintiff's motion, and she appealed from the judgment. 2. (3a) Plaintiff's complaint states a cause of action for breach of an express contract. Link P. Arg.▲ In Trutalli v. Meraviglia (1932) 215 Cal. 698 Shepardize [12 P.2d 430 Shepardize ] we established the principle that [HN7] nonmarital partners may lawfully contract concerning the ownership of property acquired during the relationship. We reaffirmed this principle in Vallera v. Vallera (1943) 21 Cal.2d 681, 685 Shepardize [134 P.2d 761 Shepardize ], stating that "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." In the case before us plaintiff, basing her cause of action in contract upon these precedents, maintains that the trial court erred in denying her a trial on the merits of her contention. Although that court did not specify the ground for its conclusion that plaintiff's contractual allegations stated no cause of action, n3 defendant offers some four theories to sustain the ruling; we proceed to examine them. n3 n3 The colloquy between court and counsel at argument on the motion for judgment on the pleadings suggests that the trial court held the 1964 agreement violated public policy because it derogated the community property rights of Betty Marvin, defendant's lawful wife. Plaintiff, however, offered to amend her complaint to allege that she and defendant reaffirmed their contract after defendant and

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Betty were divorced. The trial court denied leave to amend, a ruling which suggests that the court's judgment must rest upon some other ground than the assertion that the contract would injure Betty's property rights. Link P. Arg.▲ Defendant first and principally relies on the contention that the alleged contract is so closely related to the supposed "immoral" character of the relationship between plaintiff and himself that the enforcement of the contract would violate public policy. n4 He points to cases asserting that a contract between nonmarital partners is unenforceable if it is "involved in" an illicit relationship (see Shaw v. Shaw (1964) 227 Cal.App.2d 159, 164 Shepardize [38 Cal.Rptr. 520 Shepardize ] (dictum); Garcia v. Venegas (1951) 106 Cal.App.2d 364, 368 Shepardize [235 P.2d 89 Shepardize ] (dictum), or made in "contemplation" of such a relationship ( Hill v. Estate of Westbrook (1950) 95 Cal.App.2d 599, 602 Shepardize [213 P.2d 727 Shepardize ]; see Hill v. Estate of Westbrook (1952) 39 Cal.2d 458, 460 Shepardize [247 P.2d 19 Shepardize ]; Barlow v. Collins (1958) 166 Cal.App.2d 274, 277 Shepardize [333 P.2d 64 Shepardize ] (dictum); Bridges v. Bridges (1954) 125 Cal.App.2d 359, 362 Shepardize [270 P.2d 69 Shepardize ] (dictum)). A review of the numerous California decisions concerning contracts between nonmarital partners, however, reveals that the courts have not employed such broad and uncertain standards to strike down contracts. The decisions instead disclose a narrower and more precise standard: [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. n4 n4 Defendant also contends that the contract was illegal because it contemplated a violation of former Penal Code section 269a, which prohibited living "in a state of cohabitation and adultery." (§ 269a was repealed by Stats. 1975, ch. 71, eff. Jan. 1, 1976.) Defendant's standing to raise the issue is questionable because he alone was married and thus guilty of violating section 269a. Plaintiff, being unmarried could neither be convicted of adulterous cohabitation nor

of aiding and abetting defendant's violation. (See [HN9] In re Cooper (1912) 162 Cal. 81, 85-86 Shepardize [121 P. 318 Shepardize ].) The numerous cases discussing the contractual rights of unmarried couples have drawn no distinction between illegal relationships and lawful nonmarital relationships. (Cf. Weak v. Weak (1962) 202 Cal.App.2d 632, 639 Shepardize [21 Cal.Rptr. 9 Shepardize ] (bigamous marriage).) Moreover, even if we were to draw such a distinction -- a largely academic endeavor in view of the repeal of section 269a -- defendant probably would not benefit; his relationship with plaintiff continued long after his divorce became final, and plaintiff sought to amend her complaint to assert that the parties reaffirmed their contract after the divorce. In the first case to address this issue, Trutalli v. Meraviglia, supra, 215 Cal. 698 Shepardize , the parties had lived together without marriage for 11 years and had raised two children. The man sued to quiet title to land he had purchased in his own name during this relationship; the woman defended by asserting an agreement to pool earnings and hold all property jointly. Rejecting the assertion of the illegality of the agreement, the court stated that [HN10] "The fact that the parties to this action at the time they agreed to invest their earnings in property to be held jointly between them were living together in an unlawful relation, did 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." (Italics added.) (215 Cal. at pp. 701-702.) In Bridges v. Bridges, supra, 125 Cal.App.2d 359 [270 P.2d 69] Shepardize , both parties were in the process of obtaining divorces from their erstwhile respective spouses. The two parties agreed to live together, to share equally in property acquired, and to marry when their divorces became final. The man worked as a salesman and used his savings to purchase properties. The woman kept house, cared for seven children, three from each former marriage and one from the nonmarital relationship, and helped construct improvements on the properties. When they separated, without marrying, the court awarded the woman one-half the value of the property. Rejecting the

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man's contention that the contract was illegal, the court stated that: "Nowhere is it expressly testified to by anyone that there was anything in the agreement for the pooling of assets and the sharing of accumulations that contemplated meretricious relations as any part of the consideration or as any object of the agreement." (125 Cal.App.2d at p. 363.) Croslin v. Scott (1957) 154 Cal.App.2d 767 Shepardize [316 P.2d 755 Shepardize ] reiterates the rule established in Trutalli and Bridges. In Croslin the parties separated following a three-year nonmarital relationship. The woman then phoned the man, asked him to return to her, and suggested that he build them a house on a lot she owned. She agreed in return to place the property in joint ownership. The man built the house, and the parties lived there for several more years. When they separated, he sued to establish his interest in the property. Reversing a nonsuit, the Court of Appeal stated that [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." (154 Cal.App.2d at p. 771.) Numerous other cases have upheld enforcement of agreements between nonmarital partners in factual settings essentially indistinguishable from the present case. ( In re Marriage of Foster (1974) 42 Cal.App.3d 577 Shepardize [117 Cal.Rptr. 49 Shepardize ]; Weak v. Weak, supra, 202 Cal.App.2d 632, 639 Shepardize ; Ferguson v. Schuenemann (1959) 167 Cal.App.2d 413 Shepardize [334 P.2d 668 Shepardize ]; Barlow v. Collins, supra, 166 Cal.App.2d 274, 277-278 Shepardize ; Ferraro v. Ferraro (1956) 146 Cal.App.2d 849 Shepardize [304 P.2d 168 Shepardize ]; Cline v. Festersen (1954) 128 Cal.App.2d 380 Shepardize [275 P.2d 149 Shepardize ]; Profit v. Profit (1953) 117 Cal.App.2d 126 Shepardize [255 P.2d 25 Shepardize ]; Garcia v. Venegas, supra, 106 Cal.App.2d 364 Shepardize ; Padilla v. Padilla (1940) 38 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

n5 n5 Defendant urges that all of the cited cases, with the possible exception of In re Marriage of Foster, supra, 42 Cal.App.3d 577 Shepardize and Bridges v. Bridges, supra, 125 Cal.App.2d 359 Shepardize , can be distinguished on the ground that the partner seeking to enforce the contract contributed either property or services additional to ordinary homemaking services. [HN12] No case, however, suggests that a pooling agreement in which one partner contributes only homemaking services is invalid, and dictum in Hill v. Estate of Westbrook, supra, 95 Cal.App.2d 599, 603 Shepardize [213 P.2d 727 Shepardize ] states the opposite. Link P. Arg.▲ A promise to perform homemaking services is, of course, a lawful and adequate consideration for a contract (see Taylor v. Taylor (1954) 66 Cal.App.2d 390, 398 Shepardize [152 P.2d 480 Shepardize ]) -- otherwise those engaged in domestic employment could not sue for their wages -- and defendant advances no reason why his proposed distinction would justify denial of enforcement to contracts supported by such consideration. (See Tyranski v. Piggins (1973) 44 Mich.App. 570 Shepardize [205 N.W.2d 595, 597 Shepardize ].) Although the past decisions hover over the issue in the somewhat wispy form of the figures of a Chagall painting, we can abstract from those decisions a clear and simple rule. (4) 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. Link P. Arg.▲ Link Quick Holding▲ 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. The three cases cited by defendant which have declined to enforce contracts between nonmarital partners involved consideration that

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was expressly founded upon an illicit sexual services. In Hill v. Estate of Westbrook, supra, 95 Cal.App.2d 599 Shepardize , the woman promised to keep house for the man, to live with him as man and 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 woman based on the reasonable value of her services, the Court of Appeal stated that "the action is predicated upon a claim which seeks, among other things, the reasonable value of living with decedent in meretricious relationship and bearing him two children. . . . The law does not award compensation for living with a man as a concubine and bearing him children. . . . As the judgment is at least in part, for the value of the claimed services for which recovery cannot be had, it must be reversed." (95 Cal.App.2d at p. 603.) Upon retrial, the trial court found that it could not sever the contract and place an independent value upon the legitimate services performed by claimant. We therefore affirmed a judgment for the estate. ( Hill v. Estate of Westbrook (1952) 39 Cal.2d 458 Shepardize [247 P.2d 19 Shepardize ].) In the only other cited decision refusing to enforce a contract, Updeck v. Samuel (1954) 123 Cal.App.2d 264 Shepardize [266 P.2d 822 Shepardize ], the contract "was based on the consideration that the parties live together as husband and wife." (123 Cal.App.2d at p. 267.) Viewing the contract as calling for adultery, the court held it illegal. n6 n6 n6 Although not cited by defendant, the only California precedent which supports his position is Heaps v. Toy (1942) 54 Cal.App.2d 178 Shepardize [128 P.2d 813 Shepardize ]. In that case the woman promised to leave her job, to refrain from marriage, to be a companion to the man, and to make a permanent home for him; he agreed to support the woman and her child for life. The Court of Appeal held the agreement invalid as a contract in restraint of marriage ( Civ. Code, § 1676) and, alternatively, as "contrary to good morals" ( Civ. Code, § 1607). The opinion does not state that sexual relations formed any part of the consideration for the contract, nor

explain how -- unless the contract called for sexual relations -- the woman's employment as a companion and housekeeper could be contrary to good morals. [HN13] The alternative holding in Heaps v. Toy, supra, 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. The decisions in the Hill and Updeck cases thus demonstrate that [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. The Court of Appeal opinion in Hill, however, indicates that even if sexual services are part of the contractual consideration, any severable portion of the contract supported by independent consideration will still be enforced. Link P. Arg.▲ The principle that a contract between nonmarital partners will be enforced unless expressly and inseparably based upon an illicit consideration of sexual services not only represents the distillation of the decisional law, but also offers a far more precise and workable standard than that advocated by defendant. Our recent 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 analogy. Rejecting the contention that an antenuptial agreement is invalid if the parties contemplated a marriage of short duration, we pointed out in Dawley that a standard based upon the subjective contemplation of the parties is uncertain and unworkable; such a test, we stated, "might invalidate virtually all antenuptial agreements on the ground that the parties contemplated dissolution . . . but it provides no principled basis for determining which antenuptial agreements offend public policy and which do not." (17 Cal.3d 342, 352 Shepardize .)

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Similarly, in the present case a standard which inquires whether an agreement is "involved" in or "contemplates" a nonmarital relationship is vague and unworkable. Virtually all agreements between nonmarital partners can be said to be "involved" in some sense in the fact of their mutual sexual relationship, or to "contemplate" the existence of that relationship. Thus defendant's proposed standards, if taken literally, might invalidate all agreements between nonmarital partners, a result no one favors. Moreover, those standards offer no basis to distinguish between valid and invalid agreements. Link P. Arg.▲ By looking not to such uncertain tests, but only to the consideration underlying the agreement, we provide the parties and the courts with a practical guide to determine when an agreement between nonmarital partners should be enforced. (5) Link P. Arg.▲ Defendant secondly relies upon the ground suggested by the trial court: that the 1964 contract violated public policy because it impaired the community property rights of Betty Marvin, defendant's lawful wife. Defendant points out that his earnings while living apart from his wife before rendition of the interlocutory decree were community property under 1964 statutory law (former Civ. Code, §§ 169, 169.2) n7 and that defendant's agreement with plaintiff purported to transfer to her a half interest in that community property. But whether or not defendant's contract with plaintiff exceeded his authority as manager of the community property (see former Civ. Code, § 172), defendant's argument fails for the reason that [HN15] an improper transfer of community property is not void ab initio, but merely voidable at the instance of the aggrieved spouse. See Ballinger v. Ballinger (1937) 9 Cal.2d 330, 334 Shepardize [70 P.2d 629 Shepardize ; Trimble v. Trimble (1933) 219 Cal. 340, 344 Shepardize [26 P.2d 477 Shepardize ].) n7 n7 Sections 169 and 169.2 were replaced in 1970 by Civil Code section 5118. In 1972 section 5118 was amended to provide that [HN16] the earnings and accumulations of both spouses "while living separate and apart from the other spouse, are the separate property

of the spouse." In the present case Betty Marvin, the aggrieved spouse, had the opportunity to assert her community property rights in the divorce action. (See Babbitt v. Babbitt (1955) 44 Cal.2d 289, 293 Shepardize [282 P.2d 1 Shepardize ].) The interlocutory and final decrees in that action fix and limit her interest. [HN17] Link P. Arg.▲ 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 Betty's, and thus is not on that account violative of public policy. n8 n8 n8 Defendant also contends that the contract is invalid as an agreement to promote or encourage divorce. (See 1 Witkin, Summary of Cal. Law (8th ed.) pp. 390-392 and cases there cited.) The contract between plaintiff and defendant did not, however, by its terms require defendant to divorce Betty, nor reward him for so doing. Moreover, the principle on which defendant relies does not apply when the marriage in question is beyond redemption ( Glickman v. Collins (1975) 13 Cal.3d 852, 858-859 Shepardize [120 Cal.Rptr. 76 Shepardize , 533 P.2d 204 Shepardize ]); whether or not defendant's marriage to Betty was beyond redemption when defendant contracted with plaintiff is obviously a question of fact which cannot be resolved by judgment on the pleadings. (6) Defendant's third contention is noteworthy for the lack of authority advanced in its support. He contends that enforcement of the oral agreement between plaintiff and himself is barred by Civil Code section 5134, which provides that [HN18] "All contracts for marriage settlements must be in writing. . . ." [HN19] A marriage settlement, however, 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. (See Corker v. Corker (1891) 87 Cal. 643, 648 Shepardize [25 P. 922 Shepardize ].) The contract at issue here does not conceivably fall within that definition, and thus is beyond the compass of section 5134. n9

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n9 n9 Our review of the many cases enforcing agreements between nonmarital partners reveals that [HN20] the majority of such agreements were oral. In two cases ( Ferguson v. Schuenemann, supra, 167 Cal.App.2d 413 Shepardize ; Cline v. Festersen, supra, 128 Cal.App.2d 380 Shepardize ), the court expressly rejected defenses grounded upon the statute of frauds. (7) Defendant finally argues that enforcement of the contract is barred by Civil Code section 43.5, subdivision (d), which provides that "No cause of action arises for . . . breach of promise of marriage." This rather strained contention proceeds from the premise that a promise of marriage impliedly includes a promise to support and to pool property acquired after marriage (see Boyd v. Boyd (1964) 228 Cal.App.2d 374 Shepardize [39 Cal.Rptr. 400 Shepardize ]) to the conclusion that pooling and support agreements not part of or accompanied by promise of marriage are barred by the section. We conclude that section 43.5 is not reasonably susceptible to the interpretation advanced by defendant, a conclusion demonstrated by the fact that since section 43.5 was enacted in 1939, numerous cases have enforced pooling agreements between nonmarital partners, and in none did court or counsel refer to section 43.5. (3b) In summary, we base our opinion on the principle that [HN21] Link Quick Holding▲ 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. n10 n10 Link Int. HN▲ A great variety of other 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. (See generally Weitzman, Legal Regulation of Marriage: Tradition and Change (1974) 62 Cal.L.Rev. 1169.) In the present instance, plaintiff alleges that the parties agreed to pool their earnings, that they contracted to share equally in all property acquired, and that defendant agreed to support plaintiff. The terms of the contract as alleged do not rest upon any unlawful consideration. Link Quick Holding▲ We therefore conclude that the complaint furnishes a suitable basis upon which the trial court can render declaratory relief. (See 3 Witkin, Cal. Procedure (2d ed.) pp. 2335-2336.) The trial court consequently erred in granting defendant's motion for judgment on the pleadings. 3. (8a) Plaintiff's complaint can be amended to state a cause of action founded upon theories of implied contract or equitable relief. Link P. Arg.▲ As we have noted, both causes of action in plaintiff's complaint allege an express contract; neither assert any basis for relief independent from the contract. In In re Marriage of Cary, supra, 34 Cal.App.3d 345 Shepardize , however, the Court of Appeal held that, [HN22] in view of the policy of the Family Law Act, property accumulated by nonmarital partners in an actual family relationship should be divided equally. Upon examining the Cary opinion, the parties to the present case realized that plaintiff's alleged relationship with defendant might arguably support a cause of action independent of any express contract between the parties. The parties have

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therefore briefed and discussed the issue of the property rights of a nonmarital partner in the absence of an express contract. Although our conclusion that plaintiff's complaint states a cause of action based on an express contract alone compels us to reverse the judgment for defendant, resolution of the Cary issue will serve both to guide the parties upon retrial and to resolve a conflict presently manifest in published Court of Appeal decisions. Both plaintiff and defendant stand in broad agreement that the law should be fashioned to carry out the reasonable expectations of the parties. Plaintiff, however, presents the following contentions: that the decisions prior to Cary rest upon implicit and erroneous notions of punishing a party for his or her guilt in entering into a nonmarital relationship, that such decisions result in an inequitable distribution of property accumulated during the relationship, and that Cary correctly held that the enactment of the Family Law Act in 1970 overturned those prior decisions. Defendant in response maintains that the prior decisions merely applied common law principles of contract and property to persons who have deliberately elected to remain outside the bounds of the community property system. n11 Cary, defendant contends, erred in holding that the Family Law Act vitiated the force of the prior precedents. n11 n11 We note that a deliberate decision to avoid the strictures of the community property system is not the only reason that couples live together without marriage. Some couples may wish to avoid the permanent commitment that marriage implies, yet be willing to share equally any property acquired during the relationship; others may fear the loss of pension, welfare, or tax benefits resulting from marriage (see Beckman v. Mayhew, supra, 49 Cal.App.3d 529 Shepardize ). Others may engage in the relationship as a possible prelude to marriage. In lower socio-economic groups the difficulty and expense of dissolving a former marriage often leads couples to choose a nonmarital relationship; many unmarried couples may also incorrectly believe that the doctrine of common law marriage prevails in California, and thus that they are in fact married. Consequently we

conclude that [HN23] 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. As we shall see from examination of the pre-Cary decisions, the truth lies somewhere between the positions of plaintiff and defendant. The classic opinion on this subject is Vallera v. Vallera, supra, 21 Cal.2d 681 Shepardize . Speaking for a four-member majority, Justice Traynor posed the question: "whether a woman living with a man as his wife but with no genuine belief that she is legally married to him acquires by reason of cohabitation alone the rights of a co-tenant in his earnings and accumulations during the period of their relationship." (21 Cal.2d at p. 684.) Citing Flanagan v. Capital Nat. Bank (1931) 213 Cal. 664 Shepardize [3 P.2d 307 Shepardize ], which held that [HN24] a nonmarital "wife" could not claim that her husband's estate was community property, the majority answered that question "in the negative." (Pp. 684-685.) Vallera explains that "Equitable considerations arising from the reasonable expectation of the continuation of benefits attending the status of marriage entered into in good faith are not present in such a case." (P. 685.) In the absence of express contract, Vallera concluded, the woman is entitled to share in property jointly accumulated only "in the proportion that her funds contributed toward its acquisition." (P. 685.) Justice Curtis, dissenting, argued that the evidence showed an implied contract under which each party owned an equal interest in property acquired during the relationship. The majority opinion in Vallera did not expressly bar recovery based upon an implied contract, nor preclude resort to equitable remedies. But Vallera's broad assertion that equitable considerations "are not present" in the case of a nonmarital relationship (21 Cal.2d at p. 685) led the Courts of Appeal to interpret the language to preclude recovery based on such theories. (See Lazzarevich v. Lazzarevich (1948) 88 Cal.App.2d 708, 719 Shepardize [200 P.2d 49 Shepardize ]; Oakley v. Oakley (1947) 82 Cal.App.2d 188, 191-192 Shepardize [185

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P.2d 848 Shepardize ].) n12 n12 n12 The cases did not clearly determine whether a nonmarital partner could recover in quantum meruit for the reasonable value of services rendered. But when we affirmed a trial court ruling denying recovery in Hill v. Estate of Westbrook, supra, 39 Cal.2d 458 Shepardize

, we did so in part on the ground that whether the partner "rendered her services because of expectation of monetary reward" (p. 462) was a question of fact resolved against her by the trial court -- thus implying that in a proper case the court would allow recovery based on quantum meruit. Consequently, when the issue of the rights of a nonmarital partner 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 forwent reliance upon theories of contract implied in law or fact. Asserting that she had worked on her partner's ranch and that her labor had enhanced its value, she confined her cause of action to the claim that the court should impress a resulting trust on the property derived from the sale of the ranch. The court limited its opinion accordingly, rejecting her argument on the ground that the rendition of services gives rise to a resulting trust only when the services aid in acquisition of the property, not in its subsequent improvement. (57 Cal.2d at p. 668.) Justice Peters, dissenting, attacked the majority's distinction between the rendition of services and the contribution of funds or property; he maintained that both property and services furnished valuable consideration, and potentially afforded the ground for a resulting trust. This failure of the courts to recognize an action by a nonmarital partner based upon implied contract, or to grant an equitable remedy, contrasts with the judicial treatment of the putative spouse. Prior to the enactment of the Family Law Act, no statute granted rights to a putative spouse. n13 The courts accordingly fashioned a variety of remedies by judicial decision. Some cases permitted the putative spouse to recover half the property on a theory that the

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 [111 Cal.Rptr. 779 Shepardize ]; Sousa v. Freitas (1970) 10 Cal.App.3d 660, 666 Shepardize [89 Cal.Rptr. 485 Shepardize ].) Others permitted the spouse to recover the reasonable value of rendered services, less the value of support received. (See Sanguinetti v. Sanguinetti (1937) 9 Cal.2d 95, 100-102 Shepardize [69 P.2d 845 Shepardize , 111 A.L.R. 342 Shepardize ].) n14 Finally, decisions affirmed the power of a court to employ equitable principles to achieve a fair division of property acquired during putative marriage. ( Coats v. Coats (1911) 160 Cal. 671, 677-678 Shepardize [118 P. 441 Shepardize ]; Caldwell v. Odisio (1956) 142 Cal.App.2d 732, 735 Shepardize [299 P.2d 14 Shepardize ].) n15 n13 n13 [HN25] The Family Law Act, in Civil Code section 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 Civil Code section 4800. n14 n14 [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. ( Sanguinetti v. Sanguinetti, supra, 9 Cal.2d 95, 100 Shepardize .) n15 n15 The contrast between principles governing nonmarital and putative relationships appears most strikingly in Lazzarevich v. Lazzarevich, supra, 88 Cal.App.2d 708 Shepardize . When Mrs. Lazzarevich sued her husband for divorce in 1945, she discovered to her surprise that she was not lawfully married to him. She nevertheless reconciled with him, and the Lazzareviches lived together for another year before they finally separated. The court awarded her recovery for the reasonable value of services rendered,

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less the value of support received, until she discovered the invalidity of the marriage, but denied recovery for the same services rendered after that date. Thus in summary, the cases prior to Cary exhibited a schizophrenic inconsistency. By enforcing an express contract between nonmarital partners unless it rested upon an unlawful consideration, the courts applied a common law principle as to contracts. Yet the courts disregarded the common law principle that holds that implied contracts can arise from the conduct of the parties. n16 Refusing to enforce such contracts, the courts spoke of leaving the parties "in the position in which they had placed themselves" ( Oakley v. Oakley, supra, 82 Cal.App.2d 188, 192 Shepardize ), just as if they were guilty parties in pari delicto. n16 n16 "Contracts [HN27] may be express or implied. These terms however 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." ( Skelly v. Bristol Sav. Bank (1893) 63 Conn. 83 Shepardize [26 A. 474 Shepardize ], quoted in 1 Corbin, Contracts (1963) p. 41.) Thus, as Justice Schauer observed in Desny v. Wilder (1956) 46 Cal.2d 715 Shepardize [299 P.2d 257 Shepardize ], 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. (See 46 Cal.2d at pp. 735-736.) Justice Curtis noted this inconsistency in his dissenting opinion in Vallera, pointing out that [HN28] "if an express agreement will be enforced, there is no legal or just reason why an implied agreement to share the property cannot be enforced." (21 Cal.2d 681, 686 Shepardize ; see Bruch, Property Rights of De Facto Spouses Including

Thoughts on the Value of Homemakers' Services (1976) 10 Family L.Q. 101, 117-121.) And in Keene v. Keene, supra, 57 Cal.2d 657 Shepardize , Justice Peters observed that if the man and woman "were not illegally living together . . . it would be a plain business relationship and a contract would be implied." (Dis. opn. at p. 672.) Still another inconsistency in the prior cases arises from their treatment of property accumulated through joint effort. To the extent that a partner had contributed funds or property, the cases held that the partner obtains a proportionate share in the acquisition, despite the lack of legal standing of the relationship. ( Vallera v. Vallera, supra, 21 Cal.2d at p. 685; see Weak v. Weak, supra, 202 Cal.App.2d 632, 639 Shepardize .) Yet courts have refused to recognize just such an interest based upon the contribution of services. As Justice Curtis points out "Unless it can be argued that a woman's services as cook, housekeeper, and homemaker are valueless, it would seem logical that if, when she contributes money to the purchase of property, her interest will be protected, then when she contributes her services in the home, her interest in property accumulated should be protected." ( Vallera v. Vallera, supra, 21 Cal.2d 681, 686-687 Shepardize (dis. opn.); see Bruch, op. cit., supra, 10 Family L.Q. 101, 110-114; Article, Illicit Cohabitation: The Impact of the Vallera and Keene Cases on the Rights of the Meretricious Spouse (1973) 6 U.C. Davis L.Rev. 354, 369-370; Comment (1972) 48 Wash.L.Rev. 635, 641.) Thus as of 1973, the time of the filing of In re Marriage of Cary, supra, 34 Cal.App.3d 345 Shepardize , the cases apparently held that a nonmarital partner who rendered services in the absence of express contract could assert no right to property acquired during the relationship. The facts of Cary demonstrated the unfairness of that rule. Janet and Paul Cary had lived together, unmarried, for more than eight years. They held themselves out to friends and family as husband and wife, reared four children, purchased a home and other property, obtained credit, filed joint income tax returns, and otherwise conducted themselves as though they were married. Paul worked

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outside the home, and Janet generally cared for the house and children. In 1971 Paul petitioned for "nullity of the marriage." n17 Following a hearing on that petition, the trial court awarded Janet half the property acquired during the relationship, although all such property was traceable to Paul's earnings. The Court of Appeal affirmed the award. n17 n17 The Court of Appeal opinion in In re Marriage of Cary, supra Shepardize , does not explain why Paul Cary filed his action as a petition for nullity. Briefs filed with this court, however, suggest that Paul may have been seeking to assert rights as a putative spouse. In the present case, on the other hand, neither party claims the status of an actual or putative spouse. Under such circumstances an action to adjudge "the marriage" in the instant case a nullity would be pointless and could not serve as a device to adjudicate contract and property rights arising from the parties' nonmarital relationship. Accordingly, plaintiff here correctly chose to assert her rights by means of an ordinary civil action. Reviewing the prior decisions which had denied relief to the homemaking partner, the Court of Appeal reasoned that those decisions rested upon a policy of punishing persons guilty of cohabitation without marriage. The Family Law Act, the court observed, aimed to eliminate fault or guilt as a basis for dividing marital property. But once fault or guilt is excluded, the court reasoned, nothing distinguishes the property rights of a nonmarital "spouse" from those of a putative spouse. Since the latter is entitled to half the "'quasi marital property'" ( Civ. Code, § 4452), the Court of Appeal concluded that, giving effect to the policy of the Family Law Act, a nonmarital cohabitator should also be entitled to half the property accumulated during an "actual family relationship." (34 Cal.App.3d at p. 353.) n18 n18

n18 The court in Cary also based its decision upon an analysis of Civil Code section 4452, which specifies the property rights of a putative spouse. Section 4452 states that if the "court finds that either party or both parties believed in good faith that the marriage was valid, the court should declare such party or parties to have the status of a putative spouse, and, . . . shall divide, in accordance with Section 4800, that property acquired during the union . . . . " Since section 4800 requires an equal division of community property, Cary interpreted section 4452 to require an equal division of the property of a putative marriage, so long as one spouse believed in good faith that the marriage was valid. Thus under section 4452, Cary concluded, the "guilty spouse" (the spouse who knows the marriage is invalid) has the same right to half the property as does the "innocent" spouse. Cary then reasoned that if the "guilty" spouse to a putative marriage is entitled to one-half the marital property, the "guilty" partner in a nonmarital relationship should also receive one-half of the property. Otherwise, the court stated, "We should be obliged to presume a legislative intent that a person, who by deceit leads another to believe a valid marriage exists between them, shall be legally guaranteed half of the property they acquire even though most, or all, may have resulted from the earnings of the blameless partner. At the same time we must infer an inconsistent legislative intent that two persons who, candidly with each other, enter upon an unmarried family relationship, shall be denied any judicial aid whatever in the assertion of otherwise valid property rights." (34 Cal.App.3d at p. 352.) This reasoning in Cary has been criticized by commentators. (See Note, op. cit., supra, 25 Hastings L.J. 1226, 1234-1235; Comment, In re Marriage of Carey [sic]: The End of the Putative-Meretricious Spouse Distinction in California (1975) 12 San Diego L.Rev. 436, 444-446.) The commentators note that Civil Code section 4455 provides that an "innocent" party to a putative marriage can recover spousal support, from which they infer that the Legislature intended to give only the "innocent" spouse a right to one-half of the quasi-

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marital property under section 4452. We need not now resolve this dispute concerning the interpretation of section 4452. [HN29] Even if Cary is correct in holding 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 section 4452, 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. Cary met with a mixed reception in other appellate districts. In Estate of Atherley, supra, 44 Cal.App.3d 758 Shepardize , the Fourth District agreed with Cary that under the Family Law Act a nonmarital partner in an actual family relationship enjoys the same right to an equal division of property as a putative spouse. In Beckman v. Mayhew, supra, 49 Cal.App.3d 529 Shepardize , however, the Third District rejected Cary on the ground that the Family Law Act was not intended to change California law dealing with nonmarital relationships. (9) If Cary is interpreted as holding that [HN30] the Family Law Act requires an equal division of property accumulated in nonmarital "actual family relationships," then we agree with Beckman v. Mayhew that Cary distends the act. No language in the Family Law Act addresses the property rights of nonmarital partners, and nothing in the legislative history of the act suggests that the Legislature considered that subject. n19 The delineation of the rights of nonmarital partners before 1970 had been fixed entirely by judicial decision; we see no reason to believe that the Legislature, by enacting the Family Law Act, intended to change that state of affairs. n19

n19 Despite the extensive material available on the legislative history of the Family Law Act neither Cary nor plaintiff cites any reference which suggests that the Legislature ever considered the issue of the property rights of nonmarital partners, and our independent examination has uncovered no such reference. But although we reject the reasoning of Cary and Atherley, we share the perception of the Cary and Atherley courts that the application of former precedent in the factual setting of those cases would work an unfair distribution of the property accumulated by the couple. Justice Friedman in Beckman v. Mayhew, supra, 49 Cal.App.3d 529, 535 Shepardize , also questioned the continued viability of our decisions in Vallera and Keene; commentators have argued the need to reconsider those precedents. n20 We should not, therefore, reject the authority of Cary and Atherley without also examining the deficiencies in the former law which led to those decisions. n20 n20 See Bruch, op. cit., supra, 10 Family L.Q. 101, 113; Article, op. cit., supra, 6 U.C. Davis L.Rev. 354; Comment (1975) 6 Golden Gate L.Rev. 179, 197-201; Comment, op. cit., supra, 12 San Diego L.Rev. 436; Note, op. cit., supra, 25 Hastings L.J. 1226, 1246. The principal reason why the pre-Cary decisions result in an unfair distribution of property inheres in the court's refusal to permit a nonmarital partner to assert rights based upon accepted principles of implied contract or equity. We have examined the reasons advanced to justify this denial of relief, and find that none have merit. First, we note that the cases denying relief do not rest their refusal upon any theory of "punishing" a "guilty" partner. Indeed, to the extent that denial of relief "punishes" one partner, it necessarily rewards the other by permitting him to retain a disproportionate amount of the property. [HN31] Concepts of "guilt" thus cannot justify an unequal division of property between two equally "guilty" persons. n21

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n21 n21 Justice Finley of the Washington Supreme Court explains: "Under such circumstances [the dissolution of a nonmarital relationship], this court and the courts of other jurisdictions have, in effect, sometimes said, 'We will wash our hands of such disputes. The parties should and must be left to their own devices, just where they find themselves.' To me, such pronouncements seem overly fastidious and a bit fatuous. They are unrealistic and, among other things, ignore the fact that an unannounced (but nevertheless effective and binding) rule of law is inherent in any such terminal statements by a court of law. The unannounced but inherent rule is simply that the party who has title, or in some instances who is in possession, will enjoy the rights of ownership of the property concerned. The rule often operates to the great advantage of the cunning and the shrewd, who wind up with possession of the property, or title to it in their names, at the end of a so-called meretricious relationship. So, although the courts proclaim that they will have nothing to do with such matters, the proclamation in itself establishes, as to the parties involved, an effective and binding rule of law which tends to operate purely by accident or perhaps by reason of the cunning, anticipatory designs of just one of the parties." ( West v. Knowles (1957) 50 Wn.2d 311 Shepardize [311 P.2d 689, 692 Shepardize ] (conc. opn.).) Other reasons advanced in the decisions fare no better. The principal argument seems to be that "[equitable] considerations arising from the reasonable expectation of . . . benefits attending the status of marriage . . . are not present [in a nonmarital relationship]." ( Vallera v. Vallera, supra, 21 Cal.2d at p. 685.) But, although parties to a nonmarital relationship obviously cannot have based any expectations upon the belief that they were married, other expectations and equitable considerations remain. The parties may well expect that property will be divided in accord with the parties' own tacit understanding and that in the absence of such understanding the courts will fairly apportion property accumulated through mutual effort. We need not treat nonmarital partners as

putatively married persons in order to apply principles of implied contract, or extend equitable remedies; we need to treat them only as we do any other unmarried persons. n22 n22 n22 In some instances a confidential relationship may arise between nonmarital partners, and economic transactions between them should be governed by the principles applicable to such relationships. The remaining arguments advanced from time to time to deny remedies to the nonmarital partners are of less moment. [HN32] 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, as Justice Peters suggested, "that the parties intend to deal fairly with each other." ( Keene v. Keene, supra, 57 Cal.2d 657, 674 Shepardize (dissenting opn.); see Bruch, op. cit., supra, 10 Family L.Q. 101, 113.) The argument that granting remedies to the nonmarital partners would discourage marriage must fail; as Cary pointed out, "with equal or greater force the point might be made that the pre-1970 rule was calculated to cause the income-producing partner to avoid 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-established public policy to foster and promote the institution of marriage (see Deyoe v. Superior Court (1903) 140 Cal. 476, 482 Shepardize [74 P. 28 Shepardize ]), perpetuation of judicial rules which result in an inequitable distribution of property accumulated during a nonmarital relationship is neither a just nor an effective way of carrying out that policy. In summary, we believe that the prevalence of nonmarital relationships in modern society and the social acceptance of them, marks this as a time when our courts should by no means apply the doctrine of the unlawfulness of the so-called meretricious relationship to the instant case. As we have explained, the nonenforceability of

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agreements expressly providing for meretricious conduct rested upon the fact that such conduct, as the word suggests, pertained to and encompassed prostitution. To equate the nonmarital relationship of today to such a subject matter is to do violence to an accepted and wholly different practice. We are aware that many young couples live together without the solemnization of marriage, in order to make sure that they can successfully later undertake marriage. This trial period, n23 preliminary to marriage, serves as some assurance that the marriage will not subsequently end in dissolution to the harm of both parties. We are aware, as we have stated, of the pervasiveness of nonmarital relationships in other situations. n23 n23 Toffler, Future Shock (Bantam Books, 1971) page 253. The mores of the society have indeed changed so radically in regard to cohabitation that we cannot impose a standard based on alleged moral considerations that have apparently been so widely abandoned by so many. Lest we be misunderstood, however, we take this occasion to point out that the structure of society itself largely depends upon the institution of marriage, and nothing we have said in this opinion should be taken to derogate from that institution. The joining of the man and woman in marriage is at once the most socially productive and individually fulfilling relationship that one can enjoy in the course of a lifetime. (8b) We conclude that the judicial barriers that may stand in the way of a policy based upon the fulfillment of the reasonable expectations of the parties to a nonmarital relationship should be removed. As we have explained, the courts now hold that express agreements will be enforced unless they rest on an unlawful meretricious consideration. We add that [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. n24

n24 n24 [HN34] We do not seek to resurrect the doctrine of common law marriage, which was abolished in California by statute in 1895. (See Norman v. Thomson (1898) 121 Cal. 620, 628 Shepardize [54 P. 143 Shepardize ]; Estate of Abate (1958) 166 Cal.App.2d 282, 292 Shepardize [333 P.2d 200 Shepardize ].) Thus we do not hold that plaintiff and defendant were "married," nor do we extend to plaintiff the rights which the Family Law Act grants valid or putative spouses; we hold only that [HN35] she 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. Link P. Arg.▲ Link Quick Holding▲ The [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 (see Estate of Thornton (1972) 81 Wn.2d 72 Shepardize [499 P.2d 864 Shepardize ]), or some other tacit understanding between the parties. The courts may, when appropriate, employ principles of constructive trust (see Omer v. Omer (1974) 11 Wash.App. 386 Shepardize [523 P.2d 957 Shepardize ]) or resulting trust (see Hyman v. Hyman (Tex.Civ.App. 1954) Shepardize 275 S.W.2d 149 Shepardize ). 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. (See Hill v. Estate of Westbrook, supra, 39 Cal.2d 458, 462 Shepardize .) n25 n25 n25 Our opinion does not preclude the evolution of additional equitable remedies to protect the expectations of the parties to a nonmarital relationship in cases in which existing remedies prove inadequate; the suitability of such remedies may be determined in later cases in light of the factual setting in which they arise. Link Quick Holding▲ Since we have determined that plaintiff's

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complaint states a cause of action for breach of an express contract, and, as we have explained, can be amended to state a cause of action independent of allegations of express contract, n26 we must conclude that the trial court erred in granting defendant a judgment on the pleadings. n26 n26 We do not pass upon the question whether, in the absence of an express or implied contractual obligation, a party to a nonmarital relationship is entitled to support payments from the other party after the relationship terminates. The judgment is reversed and the cause remanded for further proceedings consistent with the views expressed herein. n27 n27 n27 We wish to commend the parties and amici for the exceptional quality of the briefs and argument in this case. CONCUR: CLARK (In Part) DISSENT: CLARK (In Part) DISSENT: Link Concur/Dissent▲ CLARK, J., Concurring and Dissenting. The majority opinion properly permit recovery on the basis of either express or implied in fact agreement between the parties. These being the issues presented, their resolution requires reversal of the judgment. Here, the opinion should stop. This court should not attempt to determine all anticipated rights, duties and remedies within every meretricious relationship -- particularly in vague terms. Rather, these complex issues should be determined as each arises in a concrete case.

The majority broadly indicate that a party to a meretricious relationship may recover on the basis of equitable principles and in quantum meruit. However, the majority fail to advise us of the circumstances permitting recovery, limitations on recovery, or whether their numerous remedies are cumulative or exclusive. Conceivably, under the majority opinion a party may recover half of the property acquired during the relationship on the basis of general equitable principles, recover a bonus based on specific equitable considerations, and recover a second bonus in quantum meruit. The general sweep of the majority opinion raises but fails to answer several questions. First, because the Legislature specifically excluded some parties to a meretricious relationship from the equal division rule of Civil Code section 4452, is this court now free to create an equal division rule? Second, upon termination of the relationship, is it equitable to impose the economic obligations of lawful spouses on meretricious parties when the latter may have rejected matrimony to avoid such obligations? Third, does not application of equitable principles -- necessitating examination of the conduct of the parties -- violate the spirit of the Family Law Act of 1969, designed to eliminate the bitterness and acrimony resulting from the former fault system in divorce? Fourth, will not application of equitable principles reimpose upon trial courts the unmanageable burden of arbitrating domestic disputes? Fifth, will not a quantum meruit system of compensation for services -- discounted by benefits received -- place meretricious spouses in a better position than lawful spouses? Sixth, if a quantum meruit system is to be allowed, does fairness not require inclusion of all services and all benefits regardless of how difficult the evaluation? When the parties to a meretricious relationship show by express or implied in fact agreement they intend to create mutual obligations, the courts should enforce the agreement. However, in the absence of agreement, we should stop and consider the ramifications before creating economic obligations which may violate legislative intent, contravene the intention of the parties, and surely generate undue burdens on our trial courts.

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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.