Perhaps the concept has lost its luster, perhaps the legal system has made it too complicated, but it is clear that for many reasons, people in relationships are not getting married at the same rates as they used to.
For quite some time now there has been an ongoing trend of younger and middle-aged people, those who have never been married, entering into long-term relationships, starting families, buying homes and doing all the things that married people would typically do, except they have no intention of ever getting married. Now it seems, that same trend has spread to the older generation. While there is no doubt that in the past five years the number of “grey divorces” has increased dramatically, so have the number of cohabitation arrangements between people in this same age category. Just this week, in fact, the New York Times reported that “The number of people over 50 who cohabit with an unmarried partner jumped 75 percent from 2007 to 2016 … – the highest increase in any age group.” (“More Older Couples Are Shacking Up”, May 8, 2017 – found at https://www.nytimes.com/2017/05/08/health/older-americans-unmarried-couples.html). The main reason people decide not to get married, is that they don’t think they need to. Oftentimes they have had children, they have their own estates, and they believe that marriage causes an unnecessary entanglement. In some instances they could be right. The real question is whether cohabitating creates any legal responsibility to the person you are cohabiting with (or vice-versa).
While in some states cohabiting consistently for a number of years brings with it the obligations of a married spouse (so-called “common law marriage”, California is a state which does not provide such a right. In California, there are no legal obligations to an unmarried cohabitant – with one exception: “palimony”. And Palimony is a cause of action in numerous states besides California.
“Palimony” is the colloquial name given to describe the situation that arose in the case of the late actor Lee Marvin, who was sued by his cohabitant Michelle Triola in the late 1970s, claiming that they had an agreement to share in what was accumulated during the course of their long-term cohabitation relationship, and that she had given up other pursuits to be in this cohabitation relationship. The case stands for the proposition that where a party can prove the existence of an oral contract along the terms alleged by Ms. Triola, there is liability to the other party to the contract.
While it is true that proving such a contract may be difficult, the question is whether someone in a cohabitation relationship wants to risk the unpleasantness of a lawsuit, even an unsuccessful one, if things don’t work out. Cohabitation agreements – a written document describing each person’s rights and obligations to the other, or confirming that there are no such rights and obligations, can be a useful tool not only to protect against such lawsuits, but also in clarifying what each person’s financial responsibilities in the relationship are. While these agreements may not be for everyone, from a lawyer’s perspective where affairs of the heart are involved, certainty is always better than uncertainty. There is the age old adage that with grey hair comes wisdom. Using that wisdom to protect oneself should be one of the benefits of older age.