At first glance, the Marvin case looks like it created significant rights for unmarried partners. It created a path for unmarried partners to receive “palimony” or other property from their ex. It even allows those claims to be brought without a written agreement. A closer look at the Marvin line of cases, however, shows that subsequent courts—including the courts that ultimately decided Michelle Marvin’s claim—are often reluctant to uphold a Marvin claim, particularly when the relationship at issue does not match the court’s own understanding of what a relationship should look like.
This matters, particularly for folks in non-monogamous or other non-traditional relationships. Case law moves more slowly than cultural acceptance. Although it’s becoming more common for courts to uphold a Marvin claim, unmarried partners face an uphill and often costly battle. Especially when their relationship does not look like a traditional marriage. By planning in advance using cohabitation agreements, wills and trusts, and tenancy in common agreements, non-traditional families can avoid the scrutiny and expenses that come with a court case.
The Marvin case
Lee Marvin was a Hollywood actor known for playing “tough guy” characters. In 1965, while he was separated from his wife Betty, he began living with his girlfriend, Michelle. Michelle and Lee separated about six years later. After the separation, Michelle sued Lee, seeking half of all property he acquired during their relationship. Michelle claimed that she and Lee had made an oral contract where she agreed to give up her career as a singer and actress in order to take care of Lee and their home, and Lee agreed to provide for all her financial needs and support for the rest of her life.
The lower courts sided with Lee, on the grounds that any promises Lee made to Michelle were based on her provision of sexual services to him. Because contracts for sexual services are void as a matter of public policy, Michelle’s claims could not be enforced. The California Supreme Court disagreed. In 1976, in a landmark decision, the court found that adults in a sexual relationship could form contracts with each other, provided that the contract was not formed on the basis of sexual services alone. The court also found that when such contacts are not written down, a court can look to the parties’ statements and actions to determine whether an implied contract or other understanding existed between the parties. This meant that unmarried partners now had the ability to bring a claim for support or division of property, even if they had no written agreement.
Of course, the ability to bring a claim and the ability to win on a claim are two very different things. Michelle’s case was sent back to the lower courts. Although a trial court judge awarded her about $100,000 in “restitution”, the Court of Appeal overturned the case. Despite bringing the case that gave rise to the concept of “palimony”, Michelle received nothing.
“Meretricious sexual services” and the relationship police
The Marvin case explicitly said that adults in a sexual relationship may form contracts, so long as those contracts are not based on “meretricious sexual services”, meaning that the relationship was only about sex. Despite this, many courts have been reluctant to grant Marvin claims based on implied or oral agreements. Reading between the lines, it seems that some of these courts have used the “meretricious sexual services” rule as a smokescreen to impose their own moral views. Particularly when the man in the relationship was married.
Take Taylor, a 1989 case. The court declined to grant Taylor’s Marvin claim, stating that her relationship with her partner “was nothing more than that of a legally married man and his mistress, albeit a long term one.” Ouch! Or Bergen, a 1993 case, that found a Marvin claim “unenforceable because the parties did not cohabit and therefore no consideration by Bergen existed severable from the sexual relationship.” In other words, if the two partners did not live together, there could be no possible reason for the relationship other than sex. It took until 2001 for the California Court of Appeal to decide in Cochran that it might be possible to uphold a Marvin claim where the parties did not live together full time. But even that court declined to answer whether a Marvin claim was possible where the parties don’t live together at all.
The “significant relationship” standard
Today, courts have landed on a standard of “significance”. An implied or oral Marvin contract can be upheld where the relationship is significant. What makes a relationship significant? Courts have used factors like cohabitation, raising a child together, owning property together, and having the same last name. In other words, relationships that look a lot like a traditional marriage. For example, in a recently decided case, the California Court of Appeal upheld a Marvin claim where the parties cohabitated for about 10 years before marriage.
Non-monogamous or non-traditional relationships often lack many of these signifiers. You might have a partner who plays a significant role in your life, including financially supporting you, who lives with and is married to another partner. You might have a platonic co-parent whom you live and raise children with, but you might not own property together or have your finances commingled. Or you might be part of a same sex couple who’ve never married or lived together. If you and your partner separate, or if one of you dies unexpectedly, proving a Martin claim can be time consuming, expensive, and can put you in the position of asking a judge to determine if your relationship is worth acknowledgement.
Put it in writing
What can non-traditional families or partners do? Write it down. Courts have been more likely to uphold Marvin agreements when they come in the form of written documents. A cohabitation agreement, a contract that sets out the rights and obligations of two or more people who are living together and not married to each other, controls what happens if the relationship ends. A will, in tandem with a trust, controls what happens to someone’s property when they die. A tenancy in common agreement details the rights and obligations of people who own real property as tenants in common, including what happens if one person wants to leave. Together, these documents allow you to determine in advance what should happen if the relationship ends, rather than relying on a judge to decide.
Disclaimer: The content provided here is for general informational purposes only and does not constitute legal advice or create an attorney client relationship. Laws differ from state to state, and each family and household’s legal situation is unique. The topics discussed here may not apply to every situation or family.