The property and spousal support rights and obligations found in the California Family Code are applied when a valid marriage or registered domestic partnership exists. If a couple decides to only live together and not get married, this does not give rise to protections under the Family Code. This is true even if the couple holds themselves out as a married couple, as California has gotten rid of what was called “common-law marriage.” Cohabitating couples do not owe each other financial fiduciary duties or support like married couples. Many property issues between couples that lived together before marriage are handled in civil court, not family court.
There are, of course, some family statutory rights that exist for a partner or parent that do not depend on marriage. For example, a parent is always entitled to child support form the other parent and a set custody timeshare with their children. These issues can be heard in family court, regardless of whether or not the parents ever married.
Cohabitating couples, can gain traditional marriage rights and protections through contracts with each other, either expressed or implied. For example, a cohabitating couple may agree to treat their property and earnings like community property, which would be split 50/50 upon separation. They may also contract to provide each other with a certain amount of support after separating, even though no support right exists for non-married couples. They would then need to go to court to enforce this contract if breached upon separation. The party that wants to uphold the agreement carries the burden of proving there was an agreement to share property, provide support, etc.
These types of cases are referred to as Marvin cases, from a California case that upheld a cohabitation agreement to share property and provide support while not getting married. These types of claims are still valid even if the parties later get married and enjoy the same rights under the California Family Code.
Non-married couples are free to contract into any terms regarding their assets and support, other than child support amounts, as this is always modifiable under the Family Code. A contract may also not identify payment of support or property in exchange for sexual services, as this is also not allowed under the law. Parties may agree that they owe each other duties of full and fair financial disclosure and neither shall take unfair advantage of the other. (This would mean that non-married partners fully reveal their respective property, debts, income and expenses, and their intentions and expectations regarding the financial aspects of the relationship.)
Each party should be advised to consult with their own independent counsel before signing an agreement. Not only does this allow for a non-biased pair of eyes to ensure a party’s rights are upheld, but it also helps to reduce later claims that an agreement was based on one party’s misrepresentation or fraud.
It is also advisable to be as specific about the parties’ assets and expectations as possible. Including the reasoning and financial circumstances as they exist at the time of signing will give a better understanding of the parties’ intent. An agreement may also be written to terminate when the parties get married, allowing default California law to apply. The agreement could also extend into marriage, or a new agreement can be drafted to begin at the date of marriage.
Sometimes couples do not expressly say or write out and sign their intentions for living together prior to marriage. Any contract that is not written or not verbal, is considered an implied contract, where one or both parties intends to have made a contract simply by their actions. An implied contract to share property cannot be shown only by the fact that the parties were living together, holding themselves out as husband and wife, and acting as “mutual companions and confidants.” These facts are relevant if presented along with other facts in the case, such as: reasons why the parties did not marry; joint vs. separate banking accounts for earnings; source of funds for household expenses, pooling of finances to purchase property and the way in which the parties hold title to any property they own.
It is much more common for couples to forgo marriage and instead live together as if they are married. If an express contract is not made, you may want to discuss with an attorney as to whether an implied contract exists or if drafting a contract will be beneficial to you and your partner in the future.