Family Law Prof Blog

Scottish Cohabitation Case

From Family Law Week:

In Gow v Grant [2012] UKSC 29, a Scottish cohabitation case, heard in the Supreme Court, Barnoness Hale has said that lessons can be learned in England and Wales from the practicability and fairness provided by Scottish legislation.

The appeal was concerned with the meaning and effect of section 28 of the Family Law (Scotland) Act 2006 which, for the first time, enables a cohabitant to apply to the court for financial provision where the cohabitation ends otherwise than by the death of one of the parties. The court may make an order for payment by the other cohabitant of a capital sum, having regard to whether that party ("the defender") has derived economic advantage from contributions made by the applicant and whether the applicant has suffered economic disadvantage in the interests of the defender or any child. The court must then have regard to the extent to which any economic advantage derived by one party is offset by economic disadvantage suffered by that party, or economic disadvantage suffered by one party is offset by economic advantage derived by that party.

Read more here.

MR

To Live Together, or Not To Live Together

From the Huffington Post:

For first marriages, people who cohabitate prior to marriage results in less positive interactions and more conflict when compared to people who do not cohabitate. However, people who cohabitate after becoming engaged look more similar to those who never cohabitate. In short, both those who never cohabitate and those who cohabitate only after becoming engaged have more positive marital relationships and are less divorce prone than those who cohabitate prior to becoming engaged. Stanley suggests that cohabitators who are not engaged drift into marriage without the same level of commitment as the other types of couples.

The researchers also found that in addition to having lower quality marital relationships, couples who cohabitated prior to engagement were also more likely to divorce when compared with the other two groups.

Read more here.

MR

 

Case Law Development: Damages in Palimony Actions

The New Jersey Court of Appeals details a "classic palimony" case this week -- a thirty-year relationship between Rosemary Connell and Edward Diehl.  Diehl had told Connell that they did not need to get married because they would simply tell everyone they were married, he would buy her a ring, and they would be together "always."  They did so and few people knew that they were not legally married.  Connell was disabled due to functional blindness, but contributed her disability checks and an inheritance to the family.  Diehl made various investments in his own name, raised Connell's son (claiming him as a dependent on his taxes), and made estate plans leaving the majority of his estate to Connell.  When the relationship soured, Connell was left destitute. 

The court had no difficulty in finding the prerequisites for a palimony suit here.  On the question of damages, the court recited the elements for determination of a lump-sum palimony award:  "First, the judge was required to determine the reasonable future support Diehl promised to provide. That amount is to be calculated on a weekly or monthly basis. Second, the judge was required to determine the duration of future support. Third, the judge was required to reduce that period of annual future support to a present value lump sum." 

The court of appeals reversed the trial court's determination of damages noting several errors:

First, the trial court had based the damages on Diehl's life expectancy rather than Connell's.

Second, the trial court did not explain its findings regarding the amount of Connell's support expenses and deducted from the damages, the value of Connell's food stamps.  The court of appeals noted that any palimony award "should provide her with her minimal needs and prevent the necessity of her seeking public welfare." 

Finally, as to the division of property, the trial court erred by concluding that no division of property could be made in a palimony suit. While equitable division is not proper, the trial court may divide property based on a theory of joint venture.  Specifically, regarding the family home (which was in Diehl's name only but towards which Connell had contributed her $70,000 inheritance), the court of appeals directed the trial court to consider whether the facts supported a finding of a joint venture regarding that house. "If the judge finds that a joint venture existed, he must partition the home. If he concludes otherwise, a mere return of Connell's investment is not equitable. The judge must determine the present value of $ 70,000 as though it had been invested in some reasonable manner, such as certificates of deposit. Alternatively, he may determine its present value based on the appreciation in the value of the family home since it was remodeled. Otherwise, Diehl will have enjoyed the use of Connell's money without recompense. This rationale applies equally to division of the personal property in the family home. At the very least, Connell is entitled to the return of personal property she purchased with her inheritance."

Connell v. Diehl, (January 8, 2008)
Opinion online (last visited January 9, 2008 bgf)

Symposium on Non Marital Families

The Journal of Gender, Social Policy and the Law at American University, Washington College of Law presented a symposium titled "UNmarried . . . With Children: Evaluating Legal Constraints and Social Judgments"on February 12, 2007.  Podcasts of the symposium panels, including, in the third panel, a provocative critique by WCL Professor Nancy Polikoff on the push for same-sex marriage, can be found at the following links:

Welcome Remarks / Panel 1: Legally Establishing and Protecting the Non-marital Family (01:41:42)

Panel 2: Limited Access: Obstacles Non-Marital Families Must Overcome to Adopt or to Utilize Assisted Reproductive Technology (01:48:20)

Panel 3: Obtaining Public and Health Benefits for Non-Marital Families (01:58:14)

(Last visited March 6, 2007 bgf)

North Dakota Decriminalizes Cohabitation

Unmarried couples who live together in North Dakota will no longer be considered criminals after the House agreed Thursday to repeal the law that has been on books since statehood.

Read the New York Times article (last visited March 2, 2007 bgf)

Italian Government Approves Bill to Grant Legal Rights to Cohabitants

The Italian government has approved a bill to grant legal rights to unmarried couples, including same-sex partners. The highly controversial move came after months of heated debate in the broad, ruling coalition and fierce opposition from the Vatican. If parliament passes the package, unmarried couples will get greater health and social welfare benefits. But partners will enjoy inheritance rights only if they have been living together for at least nine years. The bill, approved on Thursday evening, does not go as far as the civil unions now protected by law in some other European countries.

Read the BBC Article
(Last visited February 10, 2007 bgf)

North Dakota Decriminalizes Cohabitation Unless Fraudulent

The North Dakota Senate has passed a bill downgrades unmarried cohabitation from from a sex crime to fraud, and then only if the couple claims to be married. The bill was changed from an outright repeal of the state's anti-cohabitation law. The amended proposal would make the false representation of marital status a misdemeanor crime for a man and woman who live together. Cohabiting couples who do not falsely claim marriage would not be penalized.  The proposal now goes to the state House.

Read the article in the New York Times
(Last visited February 11, 2007 bgf)

Among those states that still make cohabitation a crime are MIchigan, Florida, Mississippi, North Carolina, Virginia and West Virginia.

Case Law Development: California Domestic Partners must Register their Partnership to Benefit from Domestic Partner Act - No Putative Spouse Analogies Available

The California Court of Appeals reviewed a number of issues that arose in the context of an individual seeking to dissolve a domestic partnership who had not registered that partnership with the state.  The court affirmed the trial court's dismissal of the petition for dissolution of a domestic partnership and found that other claims arising out of the relationship must be brought in a separate civil action.

The couple in this action acted as domestic partners and twice registered as domestic partners with the City and County of San Francisco before the effective date of the California Domestic Partner Act.    The 2003 amendments to that acct provided that "Registered domestic partners shall have the same rights, protections, and benefits, and shall be subject to the same responsibilities, obligations, and duties under law, whether they derive from statutes, administrative regulations, court rules, government policies, common law, or any other provisions or sources of law, as are granted to and imposed upon spouses."

However, the couple here had never attempted to file the necessary declaration of domestic partnership with the Secretary of State pursuant to that statute. "Thus, when appellant's dissolution petition was filed, there was no valid domestic partnership to dissolve. Compliance with the provisions for formation of a valid domestic partnership is mandatory for two individuals seeking to obtain legal recognition of their union and receive the benefits afforded by the Domestic Partner Act in California. ....As with the provisions that govern entry into a valid marriage, without satisfaction of specified statutory requirements, no discretion exists to recognize a lawful domestic partnership."

While the court generally agreed with the petitioner that the Domestic Partner Act would be given retroactive application, it disagreed that plaintiff would be able to prevail under that theory because, "She essentially wants to receive the benefits of the amendments to the domestic partnership laws, but avoid the registration requirements and termination provisions of those same amendments."

Finally, the court rejected plaintiff's argument that she should be allowed to proceed with the dissolution action as a "putative" domestic partner. 

We conclude that the putative spouse doctrine does not save appellant's dissolution action. The Domestic Partner Act seeks to create "substantial legal equality between domestic partners and spouses," but nothing in the statutory scheme includes within the enumerated rights granted to domestic partners any form of putative spouse recognition.

The court emphasized that "Despite the most recent amendments to the domestic partnership laws, domestic partners are not in all respects treated the same as spouses. While the Domestic Partner Act expanded the rights and responsibilities of registered domestic partners, "the Legislature has not created a 'marriage' by another name or granted domestic partners a status equivalent to married spouses. In fact, domestic partners do not receive a number of marital rights and benefits." The court went on to list the many benefits and responsibilities that are available to married couples that do not apply for domestic partners.

The court concluded that any right the plaintiff wished to assert under Marvin v. Marvin must be brought in a civil action and could not be brought in family court.

Velez v. Smith,  2006 Cal. App. LEXIS 1375 (September 12, 2006)
Opinion on web (last visited September 13, 2006 bgf)

Unmarried couple denied occupancy permits brings suit against city

The St. Louis Missouri unmarried couple with three children who were denied a housing permit because they are not married (see Family Law Prof Blog posting 3/19/06) have now filed suit.  The suit, filed on their behalf by the American Civil Liberties Union on Thursday, claimed that the town of Black Jack's housing law violates the state and U.S. constitutions, as well as the Federal Fair Housing Act. It seeks unspecified damages.The ordinance prohibits more than three people from living together unless they are related by ''blood, marriage or adoption.''The ACLU said Foundray Loving, Olivia Shelltrack and their school-age children are facing fines of up to $500 per week for living in their five-bedroom home in the suburb of 6,800 because Loving is not the biological father of Shelltrack's oldest child, and the couple are not married.

Read the New York Times story on the suit (last visited August 11, 2006 bgf)
Read the petition

North Carolina Holds Law Barring Cohabitation Unconstitutional

A state judge has ruled that North Carolina's 201-year-old law barring unmarried couples from living together is unconstitutional.  A lawsuit challenging the law was brought last year by the state chapter of the American Civil Liberties Union on behalf of a former Pender County sheriff's dispatcher. Deborah Hobbs, who had been living with her boyfriend, quit her job in 2004 after Sheriff Carson Smith demanded she marry her boyfriend or move out if she wanted to work for him.

Read the Fox News story (last visited July 20, 2006)bgf

Case Law Development: Removing Child from Person With Whom Child Has Strong Attachment but No Legal Rights is Not Abuse

After their relationship ended, the former lesbian partner of Mother sought to continue contact with the seven-year-old daughter born during their relationship. When Mother denied visitation, Partner brought a dependency action, alleging that depriving the child of contact with someone with whom she has a primary or secondary attachment constitutes abuse. After a hearing, the trial court dismissed the petition, concluding that "depriving [the child] of contact with [her mother's partner], someone to whom the child has no legal connection, constitutes the level of abuse needed to support a finding of a dependency." In a brief opinion, the Florida Court of Appeals affirmed. D.E. v, R.D.B., 2006 Fla. App. LEXIS 8605 (June 2, 2006) Opinion on the web (last visited June 8, 2006 bgf)

Unmarried couples with children denied occupancy permits

Nearly forty years ago, a man named Loving challenged miscegenation laws that prohibited his marriage.  Now, another Loving is finding himself in the midst of legal struggles over marriage.  This time the law would require that he marry -- at least if he wants to live with his children and their mother in single-family housing.  The community of Black Jack, Missouri, outside of St. Louis, voted to maintain its zoning restrictions that prohibit more than three people from living together in single-family housing unless they are related by "blood, marriage or adoption."   On the basis of this law, Black Jack Missouri has denied occupancy permits to unmarried residents.  Among them, Olivia Shelltrack and her partner of 13 years, Fondray Loving. The couple have three children, one from Shelltrack's previous relationship, and moved into their five-bedroom, three-bath home in January.

(This isn't the first time the St. Louis area's single-family zoning restrictions have been the subject of signficant legal scrutiny.  In Association for Educational Development v. Hayward, 533 S.W.2d 579 (Mo. 1976) a house occupied by several lay members of the Opus Dei organization was the center of a debate over whether the rectory exception in the zoning ordinance should extend to cover their living arrangements.  The Missouri Supreme Court held that the city was not required to allow a group of religiously motivated laymen to reside in a residential zone merely because it allowed a group of clergymen to reside there. Limiting the rectory exception in the zoning ordinance to persons who practiced religion as a regular vocation was not wholly arbitrary and provided fixed criteria for its application and thus did not deprive the residents of their first amendment rights.)

Read the St. Louis Post Dispatch story on the issue or this article from Black America Web (May 19, 2006 bgf)

Case Law Development: Cohabitation Required For Palimony Suit

The New Jersey Court of Appeals held that, no matter how long-term or committed a romantic relationship might be, without a period of cohabitation, neither party can state a claim for palimony.  The facts of the case involved an 70-year extramarital romantic relationship.  The parties had never lived together, largely because one or the other was married to another during most of that time. Near the end of defendant's life, plaintiff brought a suit to enforce his alleged promise of livetime support. The trial court dismissed plaintiff's case, finding that any promise of support made by defendant was unenforceable, because the parties had never cohabitated in a marital-type relationship. The court of appeals affirmed.

The court held that "In order to establish a prima facie case for palimony, a plaintiff must present competent evidence showing: (1) that the parties cohabitated; (2) in a marriage-type relationship; (3) that, during this period of cohabitation, defendant promised plaintiff that he/she would support him/her for life; and (4) that this promise was made in exchange for valid consideration."  The court reasoned that "Requiring cohabitation as an element of a palimony action ... provides a measure of advance notice and warning, to both parties to a relationship, and to their respective family members, that legal and financial consequences may result from that relationship. In this context, cohabitation requires the demonstrable act of setting up a household together. Thus, in contrast to an extramarital affair, even a long-term one, cohabitation announces to the ones most affected by the existence of the relationship, the innocent spouse and dependent children, that defendant has entered into a relationship that may result in significant and long-term impairment of family assets."

Levine v. Konvitz, 2006 N.J. Super. LEXIS 25 (February 6, 2006)bgf

More Couples Cohabit

"First comes love, then comes ... living together? With a majority of married couples living together before they say their vows, according to University of Pittsburgh sociologist Sambriddhi Kharel, the notion of a husband carrying his wife over the threshold of their new house has gone the way of powder-blue tuxes. Now, couples routinely live together, or co-habitate, in "trial" periods, which mark the new step between dating and marriage. . . .
Nationally, an estimated 12 million people, more than 15,000 of which live in Pittsburgh, have made the same decision, according to the 2004 U.S. Census Bureau American Community Survey. And for those baby boomers who think they broke all the rules, the census also shows the number of unmarried couples living together increased tenfold between 1960 and 2000." By Rochelle Hentges, Pittsburgh Trib p.m. Link to Article (last visited 1-25-06 NVS)

Case Law Development: Child Custody Dispute Between Cohabitants Results in Gestational Mother Being Given Custody Rights Even Though She has No Genetic Connection to the Children

In a groundbreaking and controversial 4-1 decision, the  Supreme Court of Tennessee granted custody of triplets to their gestational mother as against the children's genetic father.  The couple had lived together and intended to raise the children together.  Father's sperm was used to fertilize donated eggs for his partner.  Because Mother had no genetic connection to the children, Father argued that she should have no right to custody of the children. 

The majority opinion filed Wednesday and written by now-retired Chief Justice Frank F. Drowota, III, upheld the lower court decisions that awarded joint custody to the parents, with the mother as primary custodian, providing for visitation for the father and ordering him to pay child support.  The Supreme Court decision was based, in part, on the triplets’ unmarried parents’ “demonstrated” intent prior to and during the pregnancy that the woman who bore them would be the mother. In addition, the majority concluded that “sound policy and common sense favor recognizing gestation as an important factor for establishing legal maternity.”

In a separate dissenting opinion, Justice Adolpho A. Birch, Jr., said the majority “reached beyond existing law to produce a palatable result....Unless our legislature acts, I fear that this narrowly tailored solution designed for this specific case will be used as precedent for other cases involving reproductive technolgy,”

In Re C.K.G., 2005 Tenn. LEXIS 812 (October 6, 2005)
Opinion on the web at http://www.tsc.state.tn.us/OPINIONS/TSC/PDF/054/CKGOpn.pdf (last visited October 9, 2005 bgf)

Read the article in The Tennessean, quoting Professor Susan Brooks of Vanderbilt regarding the importance of the case.

Read the Tennessee Courts’ Press Release on the decision.

Study claims cohabitation before marriage has heavy cost

OTTAWA, Ontario. According to a study released by the Ottawa based Vanier Institute of Family,  "living together" comes with a heavy cost. The study, "Cohabitation and Marriage: How Are They Related?," authored by Anne-Marie Ambert, compiles results from hundreds of research papers that examined the social, emotional and financial effects of cohabitation and marriage on women, men, children and society. The study indicates that cohabitation by its nature is highly unstable, that it leads to higher divorce rates, and is detrimental to children both psychologically and physically. Source: Vanier Institute of Family. Click here for the complete story (last visited October 4, 2005, REO).  Download vanier_report.pdf

Case Law Developments: Jurisdiction of Court to Order Partition of Cohabitant's Property in Protective Order Action

In a case involving a six-year litigation between cohabitants, the New Jersey appellate court held that the trial court did not err in ordering equitable partition of cohabitant's property even though the action had been brought initially as a protective order action.  The court found that the partition remedy, while not within the scope of the protective order statute, was within the trial court's general equitable powers and that the court could include partition with the protective order action, rather than requiring that a separate case be filed. 

Mitchell v. Oksienik, 2005 N.J. Super. LEXIS 267 (September 2, 2005)

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Unmarried together: seniors choosing to cohabitate

The number of men and women who are 65 and older and choose to live together without getting married has nearly doubled in a decade, according to a study by the Census Bureau as reported in an October 2004 article posted online by the AARP. Of the 9.7 million unmarried partners who were cohabiting in 2000, the Census counted 266,600 couples in the 65-plus group. This number more than doubled since 1989, according to the Census Bureau. Furthermore, many experts think the numbers are now much higher and they are expected to climb even further as baby boomers age and Americans generally stay healthy and live longer. So what stops so many seniors from tying the knot? Among other things, it is often the prospect of financial loss, according to the same October 2004 article posted by AARP. By:  Patrick Lange, Sunherald.com.

http://www.sun-herald.com/NewsArchive4/090405/tp17de17.htm?date=090405&story=tp17de17.htm  (Last visited September 4, 2005).