February 2001

Yours, Mine, Ours? Property Interests of Unmarried Couples

by Patricia Novotny

Since 1984, unmarried couples in Washington have enjoyed access to the courts for equitable distribution of property acquired by the parties during their relationship, thanks to the meretricious relationship doctrine¹ first recognized in Marriage of Lindsey.² Refined in 1995 by the Washington Supreme Court in Connell v. Francisco,³ this equitable doctrine applies to couples who are in stable, marital-like relationships, cohabiting with knowledge that a lawful marriage between them does not exist. At separation, and presumably at death,⁴ the parties to such relationships are entitled to a just and equitable distribution of property acquired during the relationship that would be community property if the parties had been married. The doctrine does not extend to the myriad other benefits and privileges that attend marriage, but is limited to property that would be community property. While this equitable doctrine could hardly be described as a precision tool, it has been the only tool available to growing numbers of unmarried couples.

In two recent cases, the Supreme Court confirmed the continued vitality of the Connell rule.⁵ In consolidated cases from Divisions I and II of the Court of Appeals, Chesterfield v. Nash⁶ and Pennington v. Pennington,⁷ the Supreme Court approved the Connell definition of meretricious relationship as "marital-like," while also reiterating that "marital-like" does not mean "marital."⁸ Rather, five factors which "are neither exclusive nor hypertechnical," but "helpful," broadly outline the evidence relevant to determining whether a meretricious relationship exists: continuous cohabitation, duration of the relationship, purpose of the relationship, pooling of resources and services for joint projects, and the intent of the parties.⁹ Whether a relationship may properly be characterized as a meretricious relationship depends upon the facts of each case.

The court in Pennington also clarified Connell's three-prong analysis for application of the doctrine. First, the court undertakes to determine whether a meretricious relationship existed. Upon finding that it did, the trial court "evaluates the interest each party has in the property acquired during the relationship." Finally, the court "makes a just and equitable distribution of such property," guided by the principles that apply in marital dissolution cases.¹⁰ While the facts in neither Pennington nor Chesterfield satisfied the definitional prong, the definition itself and the analysis first fully articulated in Connell remain unchanged.

During the pendency of Pennington, a more specific question was raised by another Division II case. In Vasquez v. Hawthorne,¹¹ the court held that "marital-like" means marriageable, putting the doctrine off limits to same-sex couples (as well as to minors, close relatives and the already married).¹² The court reasoned that since Washington public policy forbids same-sex couples to marry, it likewise excludes them from the benefits of the meretricious relationship doctrine. The Supreme Court accepted review and will hear argument on February 13, 2001. Vasquez raises directly the question whether and to what extent a court-created equitable doctrine is constrained by legislative policy statements on marriage.

The state, in both local and national forms of government, has long expressed its bias that intimate relationships be formed within the state-approved institution of marriage. To this end, the state defines who may be married and the procedure for becoming married.¹³ Those who satisfy these prerequisites gain access to a system that regulates property distribution and familial bonds.

Those who do not marry, including those who cannot marry, nevertheless accumulate both property and family. Formerly, children of such unions, described as "illegitimate," endured both legal and societal burdens.¹⁴ The refusal to accord legal rights to children born out of wedlock furthered public policy by "the discouragement of illicit commerce between the sexes, and the fostering of marriage and the sustaining of the interests of the family created by lawful marriage."¹⁵ Now the legal taint of such births has been all but eradicated, and parentage statutes provide for treatment of such children similar to that provided the children of marriage. As regards property accumulations, however, unmarried couples are largely on their own.

When unmarried couples cannot agree on property division at dissolution of the relationship, or when one party to the couple dies leaving unclear property ownership, the couples or the survivors bring their troubles to the courts. How they will fare depends a lot on the state in which they find themselves.

Historically, some courts, demonstrating moral disapproval similar to that found in legislative enactments and society generally, refused to enforce even written agreements between the parties to a sexually intimate but unmarried relationship.¹⁶ Other courts, often driven by equitable concerns, recognized long-term sexual unions created without statutory compliance as common-law marriages. Proponents of this doctrine viewed such marriages as valid private contracts (formed per verba de praesenti, by present words of assent) deserving of judicial enforcement. Their position was animated in part by broader tensions regarding state intrusion into private realms and formed against a backdrop of a nation of commingled cultures developing across a vast continent.

Opponents saw common-law marriage as a threat to the sanctity of marriage and an abdication of state control over intimate relationships.¹⁷ To no small extent, the debate about common-law marriage exposed substantial variations in community norms regarding marriage, including variations attributable to class, culture, race and religious differences. However, the most salient difference was sex. Not surprisingly, most common-law marriage cases "were claims for the material support of women left, by death or desertion, without male partners to provide for them."¹⁸ After all, for most of this nation's history, the status of women has been inferior to that of men. In particular, by operation of law and custom, women enjoyed few choices but to marry; yet, in marriage, their rights and freedoms were substantially curtailed.¹⁹ Common-law marriage, according to one commentator, was a mechanism for dealing with female poverty, shifting the burden for dependent women from the state to private (male) actors.²⁰

The debate over common-law marriage occupied the better part of the 19th century and concluded with widespread rejection of the doctrine. Washington counted itself among the states rejecting the doctrine in favor of an exclusive statutory mechanism for marriage formation.²¹ However, Washington courts continued to construct creative solutions to ameliorate some of the harsh results that ensued, such as presuming the existence of a lawful, statutory marriage from the appearance of marriage (i.e., from solemnization and cohabitation).²²

Despite state preference for and regulation of marriage, people continued to mate outside the prescribed system and continued to bring their disagreements to the courts. Perhaps the best-known case involving a property dispute between the parties to an unmarried intimate relationship is the California case, Marvin v. Marvin.²³ In Marvin, the California court said it would enforce express contracts between unmarried but intimate cohabitants except to the extent the contract was founded on consideration of meretricious sexual services. If there was no express contract, the court would look at conduct to see if there was an implied contract. The court also approved the use of quantum meruit (i.e., quasi-contract and unjust enrichment) or trust doctrines where appropriate.

Claims such as that advanced in Marvin are made on a services-rendered theory. Interestingly, the claim often seeks recovery for performing tasks that in a marriage would be performed gratuitously. Because public policy forbade, and still forbids, payment for sexual services, recovery is allowed only to the degree the contract for other services can be severed from the sexual services.²⁴ Thus, married women for most of our history could not be compensated for their domestic labor, even if specifically contracted, because they were obligated by law to perform those services for free.²⁵ At the same time, unmarried women in sexual relationships generally could not be compensated for their labor because the illicit sexual aspect of the relationship tainted all other aspects.

Various states, including most community property states, have adopted the Marvin approach in whole or in parts.²⁶ Some states, rejecting the trust and quantum meruit theories, permit recovery only on the basis of oral or written express contracts,²⁷ while others require written contracts.²⁸

Some fewer states have rejected all theories of recovery by unmarried intimate cohabitants on the grounds that they contravene the public policy expressed by the states' marriage statutes.²⁹ In Mississippi, for example, the court relied in part on the state's criminal prohibition against non-marital cohabitation to reject claims by an unmarried intimate cohabitant.³⁰ This minority viewpoint resonates with Division II's refusal in Vasquez to apply the meretricious relationship doctrine to same-sex couples because they are forbidden by statute from marrying. However, the court's hesitation there to contravene legislative policy against same-sex marriage logically extends to an argument against the meretricious relationship doctrine altogether, since marriage law can be viewed as disapproving non-marital intimacies of any kind.³¹ In fact, the selective attention Division II pays to legislative pronouncements on same-sex marriage raises obvious constitutional concerns.

The fact that the Mississippi-type approach represents a minority viewpoint may be attributable to simple demographics. Non-marital cohabitation has increased dramatically in recent decades, such that "marriage decreasingly indexes the significant transitions normatively associated with it: sexual relationships, a shared household, and often even childbearing are likely to have occurred before marriage."³² Indeed, between 1970 and 1994, the nation experienced a sevenfold increase in heterosexual unmarried-couple households (from 523,000 to 3.7 million).³³ Another study shows an increase in unmarried partner households from 439,000 in 1960 to 4.2 million in 1998.³⁴ Data suggest that about 30 percent of these households are headed by same-sex couples.³⁵ Not only have the raw numbers trended upward, the ascent is dramatic: between 1990 and 1994, cohabitation among opposite-sex couples increased at a rate of 28 percent (compared to a rate of four percent for same-sex households).³⁶

These facts are likely to elicit different remedial responses from different people. To some, the numbers announce loudly the need to defend and protect marriage as the preferred social building-block of the nation, a response exemplified by state and federal Defense of Marriage Acts. According to this view, those who do not or cannot comply with legislative requisites for the formation of sexually intimate relationships will not enjoy recognition of those relationships in any legal setting, however limited. Others will find in the increased incidence of intimate but unmarried cohabitation the need for flexible, practical solutions to the disputes and difficulties that inevitably arise and find their way into the courts. Indeed, Justice Finley long ago argued on behalf of such equitable relief that the court had a duty to use its equitable power "to meet and provide real solutions for the real problems of real people."³⁷

Two decades ago, in reaction to the reality of marital-like cohabitation, the Washington Supreme Court fashioned a Marvin-like response unique among the states. In Lindsey, the court overturned what had become known as the Creasman presumption, after the 1948 case which declared that title presumptively reflected the intended ownership interests in the property of unmarried cohabitants, absent evidence of some contrary intent.³⁸ Readers of Creasman today find significant the fact that the petitioner rejected by the court in that case was a black man who had been involved sexually and economically with a white woman, whose death left him, the untitled partner, with nothing. Indeed, the Washington meretricious relationship cases, like those nationally, tend to reflect wider social inequities, particularly, though not exclusively, related to gender. So pronounced were these power imbalances that they prompted one justice to call for the rejection of the Creasman presumption on the grounds that it "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."³⁹

Indeed, in Vasquez, echoes of traditional sex-role specialization can be heard. Schwerzler, the deceased partner, controlled all of the finances and promised the financially unsophisticated Vasquez that he "would never want for anything and would be set for life." For whatever reason, however, no such arrangements were made, leaving Vasquez � at age 61, after 28 years of financial interdependency and employment in the couple's business, illiterate, unable to drive, and with no independent income or property � with nothing.

While inequities related to sex and to race may have diminished over the past half-century, inequities in these particulars and in general persist. Moreover, people persist in forming intimate relationships with apparently even less regard for legislative preferences than their predecessors. While the Supreme Court has made clear in Pennington that the meretricious relationship doctrine is alive and well, and that the Washington courts remain available to those who choose not to marry, the court must now answer whether to exclude from such equitable relief those whom the Legislature has declared cannot marry.

Patricia Novotny, a Seattle attorney, practices appellate law in state and federal courts. In addition to her practice, Ms. Novotny teaches at the University of Washington Women Studies Department and School of Law. She represents the Northwest Women's Law Center as amicus curiae in the Vasquez case. The author gratefully acknowledges the research assistance of Tamara Watts and Lior Strahelevitz of Preston Gates & Ellis LLP.

NOTES

1 The word "meretricious" derives from the Latin meretricious, meaning of prostitutes, which itself is derived from merre, meaning to earn money. The American Heritage� Dictionary of the English Language: Fourth Edition, 2000 (electronic version). Today, the word may mean "attracting attention in a vulgar manner," or, for purposes of this discussion, "of or relating to prostitutes or prostitution." Id. Despite recognition that the term is "offensive, demeaning, and sexist[,]" the Washington Supreme Court has reluctantly retained it for lack of a better one. Peffley-Warner v. Bowen, 113 Wn.2d 243, 246 n. 5, 778 P.2d 1022 (1989). "Non-marital cohabitation" might serve, since cohabit implies a sexual relationship. The American Heritage� Dictionary of the English Language: Fourth Edition, 2000 (electronic version) (Cohabit: "To live together in a sexual relationship, especially when not legally married").

2 Marriage of Lindsey, 101 Wn.2d 299, 304, 678 P.2d 328 (1984).

3 Connell v. Francisco, 127 Wn.2d 339, 898 P.2d 831 (1995).

4 See Peffley-Warner v. Bowen, 113 Wn.2d 243, 253, 778 P.2d 1022 (1989) ("The division of

property following termination of an unmarried cohabiting relationship is based on equity, contract or trust, and not on inheritance.").

5 In re Marriage of Pennington, � P.2d ��, 2000 WL 1862689 (Wash. Dec 21, 2000).

6 Chesterfield v. Nash, 96 Wash. App. 103, 978 P.2d 551 (1999).

7 Pennington v. Pennington, 93 Wash. App. 913, 971 P.2d 98 (1999).

8 Pennington, citing Connell, 127 Wn.2d at 346.

9 Id.

10 Id.

11 Vasquez v. Hawthorne, 99 Wash. App. 363, 994 P.2d 240 (2000).

12 See RCW 26.04.020.

13 Who the state deems marriageable changes over time. In the Middle Ages, for example, consanguinity rules that prohibited marriage between those related by blood to the fourth degree expanded in the 9th century to prohibit marriage between those related to the seventh degree, then changed again in 1215 back to the fourth degree. Richard Burtsell, The Catholic Encyclopedia, Volume IV (Online Edition, 1999: www.newadvent.org/cathen). Moreover, the degrees were different for some non-European races. Id. In colonial and revolutionary America, slaves were prohibited from marrying, presumably to protect the slaveowner's ability to buy and sell free of any consideration to family ties. As late as 1967, 15 states still prohibited interracial (i.e., white plus "colored") couples from marrying. (Most statutes did not restrain members of nonwhite races from intermarrying.) The purpose of these statutes, as described by the Virginia Supreme Court, was "to preserve the racial integrity of its citizens," and to prevent "the corruption of blood," "a mongrel breed of citizens," and "the obliteration of racial pride," a purpose the U. S. Supreme Court interpreted as "an endorsement of the doctrine of White Supremacy." Loving v. Virginia, 388 U.S. 1, 8, 87 S. Ct. 1817, 1967 U.S. Lexis 1082, 18 L. Ed. 2d 1010 (1967) (internal citations omitted).

14 See Pitzer v. Union Bank of California, 141 Wn.2d 539, 542 n.1, 9 P.3d 805 (2000) ("We recognize that the term illegitimate child is an offensive holdover from an era in which society was much less sensitive to the rights of children born out of wedlock.").

15 Wallace v. Rappleye, 103 Ill. 229, 247 (1882).

16 See, e.g., Wallace v. Rappleye, 103 Ill. 229, 249 (1882) ("An agreement in consideration of future illicit cohabitation between the parties is void, and past cohabitation does not form an adequate consideration for a promise not under seal. Chitty on Contracts, 734; 1 Story's Eq. Jur. sec. 296.").

17 See Dubler, Note, Governing Through Contract: Common Law Marriage in the Nineteenth Century, 107 Yale L. J. 1885, 1886 (1998).

18 Id., at 1887.

19 See Norma Basch, In the Eyes of the Law (1982), 17, 19-20, 22-23.

20 Dubler, at 1915-1918.

21 See In Re McLaughlin's Estate, 4 Wash. 570, 30 P. 651 (1892).

22 See, e.g., Summerville v. Summerville, 31 Wash. 411, 72 P. 84 (1903) (where husband seeks to abandon wife, court presumes all the statutory requisites preceded the couple's marriage ceremony, which, along with cohabitation gives rise to presumption of lawful marriage); McDonald v. White, 46 Wash. 334, 89 P. 891 (1907) (in property dispute between husband and wife's blood relatives, following death of wife, marriage presumed from ceremony and cohabitation where evidence fails to show whether or not a license was obtained).

23 Marvin v. Marvin, 18 Cal.3d 660, 134 Cal.Rptr. 815, 557 P.2d 106 (1976).

24 Compare Jones v. Daly, 122 Cal.App.3d 500, 176 Cal.Rptr. 130 (1981) with Whorton v. Dillingham, 202 Cal.App.3d 447, 248 Cal.Rptr. 405 (1988); see also Anno: 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.