Should cohabitants get more rights? (Washington versus California)

A common perception is that California is this crazy, pot-smoking, hippie, granola-eating, Kashi-loving state where our laws are loose and progressive.  Well, not really.  Washington State has some of the most progressive laws in the country when it comes to cohabitation and cohabitants rights.  That may not be enough to endure incessant rain or driving on John Street in Capitol Hill after snow, but I think California needs to re-evaluate our current position.

When two people live together outside of marriage and the Love Buzz ends (yes that is a Seattle/Nirvana reference), should property should be divided in an equal way?

Washington Law

Under relatively recent developments in Washington case law, cohabitants have increased rights.  The word “meretricious” is a legal term with a somewhat derogatory history that refers to a relationship outside of marriage.  A recent Washington court found that its citizens should receive a, “Just and equitable distribution of property following a meretricious relationship.” Connell v. Francisco (1995) 127 Wn.2d 339 at 347.  It’s interesting to note that Francisco was paid an annual salary of $490,548 during the marriage, so much was at stake.  The court went on to say, “We hold income and property acquired during a meretricious relationship should be characterized in a similar manner as income and property acquired during marriage. Therefore, all property acquired during a meretricious relationship is presumed to be owned by both parties. This presumption can be rebutted.” Id. at 352.  The court also describes the justification for this rule is to ensure that one party is not unjustly enriched—a rule that has its roots in the British common law concepts of quantum meruit and quantum valebat.

California Law

Under current California law, if you cohabitate outside of a marital relationship (e.g. a “meretricious relationship”) then you have no special property or support rights at the termination of that relationship.  Period.  Two people could live together for thirty years, one partner playing the domestic role while the other partner is fully employed.  At the end of those thirty years—there is neither a right to an equitable division nor is there any right to support.  Cold-hearted California.

The Marvin court (in a footnote) stated, “Although we recognize the well-established public policy to foster and promote the institution of marriage (see Deyoe v. Superior Court (1903) 140 Cal. 476, 482), perpetuation of judicial rules which result in an inequitable distribution of property accumulated during a nonmarital relationship is neither a just nor an effective way of carrying out that policy.”  Marvin v. Marvin (1976) 18 Cal.3d 660, 682.  Wait, that sounds very similar to Washington’s Francisco case!  In addition the Marvin court said that the argument that granting such property rights would deter marriage is false.  Sounds even more like Washington!  But, the California court found that although it desired an equitable distribution of property accumulated during a non-marital relationship, it could only do so if there was a contract to that effect.  If a couple were to write out a contract—the court could follow that contract.  However, courts feel “icky” about this and in Marvin v. Marvin where there was a contract, the court didn’t really follow the agreement but rather gave the female spouse less than what the contract called for.


Although the Marvin court found that recognizing property rights for cohabitants doesn’t discourage marriage, California’s current position seems to be partly based on the promotion of the institution of marriage.  The other problem is that our California court system is massively underfunded.  The inclusion of all cohabitants in our family law courts would be complete system overload.  In addition, lawmakers can point to Marvin and its line of cases—and say that if cohabitants want equal property rights they can just write out a contract.  However, most people don’t know whether or not they have property rights as cohabitants, most people wouldn’t know how to write up such a contract, and most people cannot afford an attorney for every one of their meretricious relationships.  So, until California changes the law to something like that of our Northern neighbor, most cohabitants will be left unprotected by the law.

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