Defenses in Marvin Cases

By Jared Laskin

..........Marvin actions are subject to all of the defenses which are available in contract actions generally, plus a few (such as the defense of "meretricious" consideration) which are peculiarly applicable to Marvin claims. Attorneys defending a Marvin case should consider the applicability of all of the following defenses:

.......... Statute of Limitations: Marvin claims arising from contract are subject to a four year statute of limitations for written contracts (CCP 337(1) and a two year statute for oral or implied contracts (CCP 339(1)). Kurokawa v. Blum (1988) 199 Cal.App.3d 976 [245 Cal.Rptr. 463]. Claims sounding in equity will generally be subject to the four-year statute contained in CCP 343. Whorton v. Dillingham (1988) 202 Cal.App.3d 447, 457 [248 Cal.Rtpr. 411]; Nelson v. Nevel (1984) 154 Cal.App.3d 132, 140 [201 Cal.Rptr. 93].

..........Although in the typical case the statute of limitations will begin to run when the relationship ends (see Estate of Fincher (1981) 119 Cal.App.3d 343 [174 Cal.Rptr. 18], Whorton, supra, and Kurokawa, supra), if the Defendant continues to perform after the break up (e.g, by continuing support payments), the cause of action does not accrue, and the statute of limitations does not begin to run, until the Defendant stops performing. Cochran v. Cochran (1997) 56 Cal.App.4th 378 [__ Cal.Rptr.2nd __].

.......... Statute of Frauds: In a typical Marvin case the Plaintiff will have already provided services in reliance on the Defendant's express or implied promises. Accordingly, in most cases the Defendant will be estopped to assert the statute of frauds. See Marvin v. Marvin (1976) 18 Cal.3d 660, 674 fn. 9 [134 Cal.Rptr. 815, 557 P.2d 106]; Cline v. Festersen (1954) 128 Cal.App.2d 380 [275 P.2d 149]; Whorton v. Dillingham (1988) 202 Cal.App.3d 447,456 [248 Cal.Rptr. 405]); Byrne v. Laura (1997) 52 Cal.App.4th 1054 [60 Cal.Rptr.2d 908].

.......... Writing Requirement for Wills: If the alleged contract required the Defendant to provide for the Plaintiff in his or her will, counsel should assert Probate Code 150, which requires that a contract to make a will be in writing. However, Probate Code section 150, being a statute of frauds, is subject to being defeated by equitable estoppel. See Byrne v. Laura (1997) 52 Cal.App.4th 1054 [60 Cal.Rptr.2d 908].

.......... Meretricious consideration: Under Marvin, a contract between unmarried persons is invalid "if sexual acts form an inseparable part of the consideration for the agreement." Marvin, supra, 18 Cal.3d at 672.

..........The "meretricious consideration" defense was raised successfully in:

.................... Jones v. Daly (1981) 122 Cal.App.3d 500 [176 Cal.Rptr. 130] (demurrer sustained without leave to amend where complaint alleged that plaintiff agreed to act as "a lover, companion, homemaker, traveling companion, housekeeper and cook" for a same-sex partner);

.................... Taylor v. Fields (1986) 178 Cal.App.3d 653, 664-665 [224 Cal.Rptr. 186] (alleged agreement between a married man and his mistress was based on unlawful consideration); and

.................... Bergen v. Wood (1993) 14 Cal.App.4th 854, 858-860 [18 Cal.Rptr.2d 75] (services as a social companion and hostess are inextricably intertwined with the sexual relationship and therefore cannot form the consideration for an agreement.)

..........The meretricious consideration defense was raised unsuccessfully in:

.................... Whorton v. Dillingham (1988) 202 Cal.App.3d 447, 454 [248 Cal.Rptr. 405]) (plaintiff's services as "chauffeur, bodyguard, social and business secretary, partner and counselor in real estate investments" were "of monetary value, and the type for which one would expect to be compensated" and therefore could be "characterized as consideration independent of the sexual aspect of the relationship."); and

.................... Alderson v. Alderson (1986) 180 Cal.App.3d 450 [225 Cal.Rptr. 610] (plaintiff's agreement to do "whatever a wife does" did not explicitly rest on meretricious consideration, even though the plaintiff viewed engaging in sexual relations as part of her "role").

.......... Choice of Law: If the parties made their Marvin contract in another state (or country), the law of that jurisdiction may govern the enforceability of the contract. See Henderson v. Superior Court (1978) 77 Cal.App.3d 583, 592-593 [142 Cal.Rptr. 478], a California decision holding that Florida law governed a Marvin claim arising out of a contract made in Florida. Counsel should therefore check to see whether the parties' home state follows Marvin, as not all states do. See, e.g., Hewitt v. Hewitt, 77 Ill.2d. 49, 349 N.E.2d 1204 (1979).

.......... Contract Promotive of Divorce: If at the time the parties entered into the Marvin contract one of them was still married, the contract may be unenforceable because it was promotive of divorce and therefore against public policy. Marvin, supra, at 18 Cal.3d at 673, n.8. However, the defense will not apply if the marriage was "beyond redemption" at the time of the agreement. Glickman v. Collins (1975) 13 Cal.3d 852, 857 [120 Cal.Rptr. 76, 533 P.2d 204]; Feldman v. Nassi (1980) 111 Cal.App.3d 881, 885-887 [169 Cal.Rptr. 9]).

.......... Agreement too Vague to Enforce: Unmarried cohabitants are rarely explicit about any agreement they may have regarding property sharing or support. Where the alleged agreement is based on the defendant's vague promises to "take care of" or "support" the plaintiff, the defendant may wish to argue that the contract is too indefinite to be enforced. See, e.g., Hoxsie v. Clark (1965) 234 Cal.App.2d 370 [44 Cal.Rptr. 399] where an alleged promise by a decedent to "take care" of the plaintiff in her will was "very vague and indefinite and therefore unenforceable." The viability of this defense has been thrown into doubt by Byrne v. Laura (1997) 52 Cal.App.4th 1054 [60 Cal.Rptr.2d 908], a recent case which suggests that the modern trend disfavors holding contracts unenforceable for uncertainty, holding that where the evidence showed that the decedent expected to provide for the plaintiff's support, that expectation should be fulfilled, with the amount of support to be ascertained in light of extrinsic evidence.

.......... Plaintiff's Breach of the Agreement: As with any contract, the Plaintiff's breach of a Marvin agreement should discharge the Defendant's obligations under the agreement. See, 1 Witkin, Summary of California Law 719 (9th ed. 1987). For example, depending on the facts, the plaintiff might be held to have breached the agreement if it was the plaintiff, rather than the defendant, who left the relationship, or if the plaintiff was unfaithful. See Bower v. Weisman (S.D.N.Y. 1987) 674 F.Supp. 109, 111 (recognizing the possibility that a Marvin contract "might permit a term in which [the plaintiff] promised to forbear from intercourse with anyone else").

.......... Lack of Mutuality: Often, the Plaintiff will allege -- in essence -- that the Plaintiff was free to leave the relationship and stop performing services at any time, but still receive post-relationship support from the Defendant (sometimes lifetime support). The defendant should argue that such an alleged contract lacks mutuality and is therefore illusory and unenforceable. See Cox v. Hollywood Film Enterprises, Inc. 109 Cal.App.2d 320, 325 [240 P.2d 713] (1952), in which the court declined to interpret an ambiguous lease provision as allowing the tenants to terminate the lease at any time and thereafter collect a $5,000 "bonus" from the landlord.

.......... Equitable Defenses: If the Plaintiff is asserting claims sounding in equity, defense counsel should consider the application of equitable defenses such as the defense of "unclean hands." See Taylor v. Fields, supra, 178 Cal.App.3d at 666.

.......... Presumption re: Real Property: If a Marvin claim includes a claim for a share in real property accumulated during the relationship, defense counsel should assert the presumption contained in Evidence Code section 662: "The owner of legal title to property is presumed to be the owner of the full beneficial title." This presumption may be overcome only by clear and convincing evidence. Id.; Toney v. Nolder 173 Cal.App.3d 791 [219 Cal.Rptr. 497] (1985); Tannehill v. Finch 188 Cal.App.3d 224 [232 Cal.Rptr. 749] (1986).

..........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.