Law -- An Overview
By Jared Laskin
..........Although the history of California
"palimony" law did not really start with Marvin v. Marvin
(1976) 18 Cal.3d 660 [134 Cal.Rptr. 815, 557 P.2d 106] (see A
Chronological Summary of California "Palimony" Law Before Marvin),
that famous case is the best starting point for gaining a basic understanding
of what "palimony" is all about.
..........In Marvin, the plaintiff,
Michelle Marvin, alleged that she and Lee Marvin entered into an oral agreement
which provided 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."Marvin,
supra, 18 Cal.3d at 666. The parties allegedly further agreed that Michelle
would "render her services as a companion, homemaker, housekeeper and
cook." Id. Michelle sought a judicial declaration of her 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 granted a judgment
on the pleadings in favor of the defendant, holding that the alleged agreement
was unenforceable. The California Supreme Court reversed, stating that "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." Id. at 668-669 (emphasis in original.) The Court held:
In summary, we base our opinion on the principle that 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 . . . . 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 contracts. Id. at
..........Although the plaintiff's complaint
alleged only an express contract, the Supreme Court went on to address the
issue of "the property rights of a nonmarital partner in the absence
of an express contract." Id. Here, the Supreme Court made new law.
Prior California cases had refused to enforce implied contracts between
nonmarital cohabitants. The Court overruled that line of cases, holding
that in the absence of an express agreement the plaintiff might be able
to establish an implied contract or implied partnership, and might be able
to invoke such remedies as constructive trust, resulting trust, and quantum
..........In a footnote, the Court stated
that its opinion did 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." Id. at 684,
n. 25. Notwithstanding this suggestive footnote the Marvin decision
did not create any new legal theories or causes of action. Rather, the express
intention of the Court's opinion was simply to treat nonmarital cohabitants
"as we do any other unmarried persons." Id. at 682 (emphasis supplied).
-- a misnomer:
..........The term "palimony"
implicitly analogizes the rights of a nonmarital partner to the right of
a spouse to receive alimony. However, a Marvin action is in no way
analogous to an action for dissolution of marriage.
..........The Supreme Court in Marvin
expressly declined to treat unmarried cohabitants like married persons,
overruling two prior decisions of the Court of Appeal which had applied
the Family Law Act to unmarried cohabitants. Id. at 681. Since Marvin,
California courts have been scrupulous in separating Marvin actions
from domestic relations actions. The courts have held:
.......... Trial courts in divorce proceedings
do not have jurisdiction over Marvin claims arising out of premarital
cohabitation. In re Marriage of Johnson (1983) 143 Cal.App.3d 57 [191 Cal.Rptr.
545]. (A Marvin claim filed in a civil action may, however, be consolidated
with a dissolution proceeding. Id.)
.......... An award of spousal support
may not be based on the parties' cohabitation before marriage. In re Marriage
of Bukaty (1986) 180 Cal.App.3d 143 [225 Cal.Rptr. 492].
.......... A Marvin case may not
be processed in the superior court under the special family law rules. Schafer
v. Superior Court (1986) 180 Cal.App.3d 305 [225 Cal.Rptr. 513].
.......... Jurisdiction standards applicable
to domestic relations cases do not apply to Marvin actions. Kroopf
v. Guffey (1986) 183 Cal.App.3d 1351, 1357-1358 [228 Cal.Rptr. 807].
.......... The obligation to pay support
pursuant to a stipulated judgment in a Marvin action is -- unlike
an order for spousal support -- dischargeable in bankruptcy. In re James
P. Doyle (9th Cir. BAP 1986) 70 B.R. 106.
.......... A former unmarried partner
is not entitled to an award of pendente lite support. Friedman v. Friedman
20 Cal.App.4th 876 (1993).
..........Accordingly, the term "palimony"
is inaccurate insofar as it implicitly compares a "pal's" rights
with the rights of a divorcing spouse. A spouse's right to receive alimony
and to share in marital property is based on his or her status as a spouse.
A "pal" does not have any comparable automatic right to property
or support based only on his or her status as a nonmarital partner. Rather,
a Marvin plaintiff must prove some other underlying basis for his
or her claim, such as an express or implied contract.
..........This point was greatly clarified
in the sequel to the Marvin case, "Marvin II" (Marvin
v. Marvin (1981) 122 Cal.App.3d 871 [176 Cal.Rptr. 555]). The Supreme
Court's decision in the first Marvin case reversed a judgment on
the pleadings and remanded the case for further proceedings. Thereafter,
Michelle Marvin's claims were tried in the Superior Court without a jury.
The trial court found that the parties never agreed to share their property
and that Lee Marvin did not agree to support Michelle. Nevertheless, the
trial court awarded Michelle $104,000 for the purpose of allowing her to
be rehabilitated or to learn new employable skills.
..........The Court of Appeal reversed,
holding that the award was improper because "there is nothing in the
trial court's findings to suggest that such an award is warranted to protect
the expectations of both parties." Id. at 876 (emphasis in original).
Importantly, the court noted that while footnote 25 of the Marvin
decision spoke of the evolution of additional equitable remedies, a court
of equity "may not create totally new substantive rights under the
guise of doing equity." Id.
..........A similar "rehabilitative"
award was reversed in Taylor v. Polackwich (1983) 145 Cal.App.3d 1014, 1021
[194 Cal.Rptr. 8], in which the court of appeal stated: "[W]hile a
rehabilitative award is a proper means of enforcing rights which cannot
otherwise be adequately enforced, an equitable remedy may not be employed
to grant rehabilitation to one who has no underlying right to relief on
..........Marvin II and Polackwich
should have eliminated any lingering belief that Marvin might have
created some new right whereby a "pal" could collect "palimony"
based on mere status as a cohabitant and nothing more. The primary "right"
granted by Marvin is simply the right every person has to seek enforcement
of his or her lawful contracts.
..........Marvin II notwithstanding,
there is still some confusion about just what Marvin stands for.
That confusion is manifested, for example, in the aberrant opinion of the
Court of Appeal for the Second District in Taylor v. Fields (1986) 178 Cal.App.3d
653 [224 Cal.Rptr. 186].
..........In Taylor v. Fields, the plaintiff,
Taylor, had a relationship with a married man, Leo, for 42 years. After
Leo died Taylor sued his widow, alleging breach of an agreement by Leo to
take care of Taylor financially.
..........As the Court of Appeal correctly
pointed out, the relationship alleged by Taylor was "nothing more than
that of a legally married man and his mistress." Id. at 658. The alleged
contract rested on meretricious consideration and was unenforceable. That
was, in fact, one of the alternative holdings in support of the decision.
The analysis could have begun and ended there.
..........Inexplicably, however, the Court
of Appeal seized on the fact that the parties did not live together as its
primary basis for denying Taylor recovery. First, the Court of Appeal noted
that in Marvin, and the cases cited therein, the courts "upheld
agreements where the parties lived together and relied on agreements not
based on meretricious consideration." Id. at 661. The court then launched
into a discussion of cases involving claims by cohabitants for loss of consortium
or wrongful death, noting one case which had extended the right to sue for
loss of consortium to cohabitants who engaged in "stable and significant"
..........In an insupportable leap of logic,
the Fields court then held that cohabitation is a prerequisite to recovery
in a Marvin-type action and that "Taylor's contract with Leo
is unenforceable because there is no showing of stable and significant cohabitation
. . . ." Id. at 666. In so holding, the court stated:
While Taylor avers she and Leo occasionally spent weekends together and registered as husband and wife, such claims are inadequate to bring their relationship within Marvin principles. Id. at 663.
....................The above statement demonstrates a profound misunderstanding of Marvin. After all, what are "Marvin principles?" The only true "Marvin principle" is to treat nomarital cohabitants "as we do any other unmarried persons" -- principally, by enforcing their contracts. In effect, then, the Fields court illogically held that one must be a cohabitant to be treated like a non-cohabitant (i.e., like "other unmarried persons"). The loose language in Fields, if taken literally, would lead to the reductio ad absurdum that no contract is enforceable unless the contracting parties live together.
..........The Court of Appeal for the Second
District purported to follow Fields in Bergen v. Wood (1993) 14 Cal.App.4th
854 [18 Cal.Rptr.2d 75]. However, the Bergen court backed away from the
absolutist language in Taylor v. Fields, stating: "Cohabitation is
necessary not in and of itself, but rather, because from cohabitation flows
the rendition of domestic services, which services amount to lawful consideration
for a contract between the parties." Id. at 858. Bergen paves the way
for a future case repudiating the Second District's cohabitation "requirement,"
and holding that the only requirement is that the contract be supported
by some lawful consideration severable from the sexual relationship (whether
or not that consideration takes the form of "domestic services").
..........The correct rule on cohabitation
was stated by the Court of Appeal for the Fourth District in Milian v. De
Leon (1986)181 Cal.App.3d 1185, 1193 [226 Cal.Rptr. 831] as follows: "[C]ohabitation
is not a prerequisite to the finding of an implied agreement between unmarried
persons concerning their property."
..........Despite some lingering confusion
exemplified by Fields, Marvin did not create a unique cause of action
-- rather, it simply extended existing causes of action to unmarried cohabitants.
However, there are some unusual defenses which are sometimes available in
Marvin-type cases. These are explored in the article Defenses in
..........The information on this Web
page is based on California law. It is not legal advice and cannot replace
the advice of competent legal counsel licensed in your State based on the
specific facts and circumstances of your case. See Disclaimer.