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UnMarried Cohabitants Rights
Jan L. Warner


When two individuals live together without the benefit of marriage, share assets and income, acquire assets, and then separate, a whole new set of rules take over. Rather than being governed by a body of statutory and case law and family courts, the relationship is governed agreements, implied agreements, and intent. Upon separation, what remedies may be available? First of all, it depends on where you live.


At present, 14 jurisdictions recognize the doctrine of common law marriage which may be established when a man and woman intend to be husband and wife and there is a mutual, open showing of a marriage relationship. Generally speaking, there must be a mutual exchange of promises for the husband and wife relationship to be established. The intent is usually proved by evidence of holding themselves out as husband and wife by living together and having community reputation of being husband and wife. Proof of intent to be married may include use of the last name of the male companion, statements to third persons, letters, and related documents. Upon proving a common law marriage, the relationship is governed by the same laws as those governing folks who have ceremonial marriages. Social Security recognizes common law marriages.


In states which do not recognize common law marriage, unmarried cohabitants may avail themselves of various equitable remedies.

Resulting Trust – Unjust Enrichment

A resulting trust is an equitable remedy which prevents unjust enrichment of one party at the expense of the other. Generally, unjust enrichment can be found where it would be otherwise unfair for one person to retain the assets accumulated by the parties under a confidential relationship. An unjust enrichment claim is not based on an agreement but on the moral principle that one who receives a benefit must make restitution where retaining the benefit would be unjust.

Constructive Trust

Using its equitable powers, if a court determines that a person is holding either money or property of another which was acquired by unjust, unconscionable, or unlawful means, the court can impress a trust in favor of the aggrieved party. The basis for this remedy is where a person holds either funds or property which in good conscience should be possessed by the other. A constructive trust may arise when a person holding title has an equitable duty to transfer it to another on the ground that he or she would be unjustly enriched if he were permitted to retain it.

Uniform Marriage and Divorce Act

Some states have determined that the Uniform Marriage and Divorce Act should be construed to allow for the equitable distribution of property among unmarried cohabitants when "…a man and a woman who have lived together and established a relationship which is tantamount to a marital family except for a legal marriage." The result was to make income and property acquired during a meretricious relationship to be characterized like income and property acquired during marriage, and all property acquired during this cohabitation relationship is presumed to be owned by both parties.

Contracts: Express Written Agreements

If the cohabitants sign a written co-habitation agreement, which are becoming more and more prevalent, then the courts can enforce the agreement based on contract law and the terms of the agreement. Co-habitation agreements are proof there was no common law marriage, and are now being used more by elderly persons who do not want to assume financial responsibility for the others medical and other care.

Contracts: Express Oral Agreements

Some states recognize and enforce express oral contracts for support; however, it is essential that the agreement is not based on illegal or immoral consideration – like sexual relations.

Contracts: Implied Agreements

And some states recognize contracts that are implied by the parties. Here, there must be a "meeting of the minds" about the essential terms before an agreement will be implied. Where an objection is raised that such contracts are too indefinite and uncertain, the courts may imply a test of reasonableness to enforce the contract.

We hope that you have benefited from this material that is intended to provide you with practical information so you can intelligently determine your options.

If there are topics you would like for us to consider for this series, we would be pleased if you would email your suggestions to

The content of this material is designed to be used as a practical information tool and is not intended to be used or construed as legal or medical advice. Since each situation is different, since different professionals may recommend different actions, and since there are probably questions that relate to your situation which are not covered here, you should always rely on the professionals to assist you before you act. It is wise not to make final decisions or act until after your have been fully informed by the professionals of your choice.

These materials are protected by the United States copyright laws and reproduction, in whole or in part, in any form, is prohibited without the express written permission of Flyinjg Solo, owner of these copyrights. The words "Life Management" and "Flying Solo" are registered trademarks.

© 2002, FlyingSolo®

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