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.
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.
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:
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.
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 meruit.
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
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:
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].
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].
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].
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).
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.
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
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.
"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 any theory."
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.
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].
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
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.
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:
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
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.
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").
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."
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 Marvin Cases.
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.