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Cohabitation Worldwide Today
Margaret Ryznar
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Anna Stępień-Sporek
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299
COHABITATION WORLDWIDE TODAY
By Margaret Ryznar
* & Anna Stępień-Sporek**
ABSTRACT
Despite the increase in cohabitation around the world, legal
responses to it remain limited, particularly in the last several years.
Yet, there are universal issues at the end of a cohabitation,
particularly related to property division. This article will survey the
recent legal developments on the property consequences of
cohabitation in both the United States and Poland, drawing on
comparative lessons to suggest future developments in this area of
law.
INTRODUCTION
Around the world, cohabitation has been on the rise for decades
with many millions of couples living together outside of marriage.
1
* Professor of Law, Indiana University McKinney School of Law. The authors would like to thank
Jessica Dickinson and Ben Keele for excellent research assistance.
** Attorney-at-law, partner at Stępień-Sporek, Pawelski, Stoppa Spółka Partnerska Kancelaria Radców
Prawnych I Adwokatów.
1. Patrick Parkinson, Can Marriage Survive Secularization?, 2016
U. ILL. L. REV. 1749, 1753–54
(2016). The author states as follows:
Legal marriage, which was once the only accepted context for sexual relations and the nurture of
children in western countries, has long ceased to be central to people’s sexual or reproductive lives in
many parts of the world.
Marriage remains the most common form of couple relationship within Western
and Northern Europe, but the gap between marriage and cohabitation as a family
form is narrowing. For example, figures from 2006 show that in France, twenty-
six percent of adults in the eighteen to forty-nine age range were cohabiting,
while thirty-nine percent were married. In Sweden, twenty-five percent were
cohabiting and thirty-seven percent were married. In the United Kingdom, in
2001, twenty-two percent of adults aged between twenty and thirty-four were
cohabiting, while thirty-two percent were married.
In the United States, marriage is increasingly stratified by reference to
educational level. The percentage of adults aged twenty-five to sixty with four
years of high school education but no college education, and who were in first
marriages, fell from seventy-three percent in the 1970s to forty-five percent in
the 2000s. There was also a twenty-eight percent decline in first marriages
among the least educated adults over this same time period. While rates of
marriage have declined for people of all educational levels, the rate of decline
1
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300 GEORGIA STATE UNIVERSITY LAW REVIEW [Vol. 35:2
The United States is no exception: single people recently
outnumbered married people for the first time in history.
2
Many
Americans are cohabitating instead of marrying.
3
For example,
marital households recently comprised less than half of all
households in the United States, while almost 6% of households were
opposite-sex, unmarried partners.
4
Over 7 million opposite-sex
couples cohabitated in 2010,
5
a dramatic increase from the 523,000
cohabitating couples in 1970.
6
Between 2000 and 2010 alone, there
was a 41% increase in unmarried couple households.
7
Unthinkable
and even criminal for much of history,
8
cohabitation has become a
transition to marriage or even a substitute for it.
9
In Poland, the trend is similar. According to the European Social
Survey, cohabitants comprised 4.5% of all unions in 2006, an
has been least among college-educated people.
Id.
2. See, e.g., R
EBECCA TRAISTER, ALL THE SINGLE LADIES: UNMARRIED WOMEN AND THE RISE OF
AN
INDEPENDENT NATION 5 (2016).
3. Parkinson, supra note 1, at 1753.
4. D
APHNE LOFQUIST ET AL., U.S. CENSUS BUREAU, HOUSEHOLDS AND FAMILIES: 2010 5 (2012),
https://www.census.gov/prod/cen2010/briefs/c2010br-14.pdf [https://perma.cc/D6W8-H5SN];
Katharine Silbaugh, Distinguishing Households from Families, 43 F
ORDHAM URB. L.J. 1071, 1074
(2016) (“We are not a marriage population predominantly in practice, and children are not
predominantly raised for 18 years by their two parents in a common household.”); see also Tonya L.
Brito, Complex Kinship Networks in Fragile Families, 85 F
ORDHAM L. REV. 2567, 2569 (2017)
(reviewing the “dramatic changes to the American family that have occurred over the past half
century”); Jessica R. Feinberg, The Survival of Nonmarital Relationship Statuses in the Same-Sex
Marriage Era: A Proposal, 87 T
EMP. L. REV. 47, 62–63 (2014).
5. L
OFQUIST ET AL., supra note 4, at 3; see also Anna Stȩpień-Sporek & Margaret Ryznar, The
Consequences of Cohabitation, 50 U.S.F.
L. REV. 75, 77 (2016) [hereinafter Consequences of
Cohabitation].
6. Katherine C. Gordon, Note, The Necessity and Enforcement of Cohabitation Agreements: When
Strings Will Attach and How to Prevent Them—A State Survey, 37 B
RANDEIS L.J. 245, 245 (1998).
7. Lawrence W. Waggoner, With Marriage on the Decline and Cohabitation on the Rise, What
About Marital Rights for Unmarried Partners?, 41 A
M. C. TR. & EST. COUNS. L.J. 49, 55 (2015).
8. Margaret M. Mahoney, Forces Shaping the Law of Cohabitation for Opposite Sex Couples, 7
J.L. & FAM. STUD. 135, 141 (2005) (reviewing the historic criminalization of unmarried cohabitation).
9. Margaret F. Brinig & Steven L. Nock, Marry Me, Bill: Should Cohabitation be the (Legal)
Default Option?, 64 L
A. L. REV. 403, 403 (2004) (“[I]ncreasingly cohabitation is being proposed not as
a testing ground for marriage, but as a functional substitute for it. The trend in family law and
scholarship in Europe and Canada is to treat married and cohabiting couples similarly, or even
identically.”); see also id. at 404 (“In [the United States], the American Law Institute [ALI] recently
proposed that, at least when it comes to the law of dissolution, couples who have been living together
for a substantial period of time should be treated the same as married couples.”). But cf. Courtney G.
Joslin, Discrimination In and Out of Marriage, 98 B.U.
L. REV. 1, 3 (2018) (noting that cohabitation is
more common among certain socioeconomic groups in the United States).
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increase from previous years.
10
As outlined by Kathleen Kiernan, the
official statistics show that cohabitation is still in the first stage of
diffusion:
11
rare and thus treated as an unusual type of relationship.
12
The real data, however, may differ from the official data because
some people hide their cohabitation for reasons such as societal
disapproval.
13
Indeed, the high number of children born outside of
marriage suggests that cohabitation is more common.
14
Couples choose to cohabitate instead of marry for various reasons,
such as insufficient finances,
15
avoidance of the cultural and legal
implications of marriage,
16
or simply the lack of desire to get
married.
17
Many cohabitations are temporary because cohabitants
10. Anna Matysiak, Is Poland Really ‘Immune’ to the Spread of Cohabitation? 2 (Max Planck Inst.
for Demographic Research, Working Paper No. 2009-12, 2009),
https://www.demogr.mpg.de/papers/working/wp-2009-012.pdf [https://perma.cc/7RG9-27ZE].
11. Kathleen Kiernan, Cohabitation in Western Europe: Trends, Issues and Implications, in J
UST
LIVING TOGETHER: IMPLICATIONS OF COHABITATION ON FAMILIES, CHILDREN AND SOCIAL POLICY 3, 4
(Alan Booth & Ann C. Crouter eds., 2002); see also Monika Mynarska et al., Free to Stay, Free to
Leave: Insights from Poland into the Meaning of Cohabitation, 31
DEMOGRAPHIC RESEARCH 1107,
1113 (2014).
12. Monika Mynarska & Anna Matysiak, Diffusion of Cohabitation in Poland 15 (Inst. of Statistics
and Demography Warsaw Sch. of Econ., Working Paper No. 3, 2010),
http://kolegia.sgh.waw.pl/pl/KAE/struktura/ISiD/publikacje/Documents/Working_Paper/ISID_WP_3_2
010.pdf [https://perma.cc/F7HN-NJZW].
13. Id. at 11.
14. Joanna Stańczak et al., Marriages and Births in Poland, E
UROSTAT,
http://ec.europa.eu/eurostat/statistics-explained/index.php/Marriages_and_births_in_Poland
[https://perma.cc/5S6U-N785] (last visited Sept. 20, 2018).
15. Cynthia Grant Bowman, Social Science and Legal Policy: The Case of Heterosexual
Cohabitation, 9 J.L.
& FAM. STUD. 1, 11 (2007). The author states:
Qualitative research reveals that marriage, although much revered in
lower-income communities, is seen by many as appropriate only when a couple’s
economic situation is secure, a situation that may not happen quickly for some
groups, if ever. Interviews with working- and lower-middle-class cohabitants
suggest that they believe marriage should not occur until financial stability has
been reached, including not only the resources for a large wedding but perhaps
also for home ownership.
Id.; see also Spencer Rand, The Real Marriage Penalty: How Welfare Law Discourages Marriage
Despite Public Policy Statements to the Contrary—And What Can Be Done About It, 18 U.D.C.
L. REV.
93, 93 (2015) (“Couples regularly complain about marriage penalties, discovering that the tax
consequences of marrying make the cost of marriage prohibitive.”).
16. Consequences of Cohabitation, supra note 5, at 75.
17. Gordon, supra note 6, at 245.
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often eventually separate or marry.
18
According to one study, only
10% of cohabitants are still cohabitating after five years.
19
For some couples, cohabitation is a transitory step or a testing
period before marriage. However, the increase in divorces with major
financial consequences, especially in Poland, may make people
hesitate before formalizing their relationships.
20
In other words, the
negative consequences associated with divorce may be leading to a
decrease in marriage.
21
The increase in cohabitation cases has prompted courts to address
the legal issues related to cohabitation,
22
most of which concern
children and the division of property. Although parents are
responsible for their children regardless of whether they were ever
married,
23
property division between cohabitants is more gray.
24
This
article analyzes the recent legal developments on the property
consequences of cohabitation in both the United States and Poland,
drawing on comparative lessons to suggest future developments in
this area of law.
18. Waggoner, supra note 7, at 64–65.
19. Marsha Garrison, Nonmarital Cohabitation: Social Revolution and Legal Regulation, 42 F
AM.
L.Q. 309, 322 (2008). However, “approximately 60% of all U.S. cohabitants and 70% of those in a first,
premarital cohabitation marry within five years.” Id.
20. Mynarska et al., supra note 11, at 1125.
21. Steven K. Berenson, Should Cohabitation Matter in Family Law?, 13 J.L.
& FAM. STUD. 289,
315 (2011) (noting some cohabitants avoid marriage to avoid property consequences).
22. Deborah A. Widiss, Intimate Liberties and Antidiscrimination Law, 97 B.U.
L. REV. 2083, 2119
(2017). For example:
As sexual mores around cohabitation and non-marital intimacy changed,
increasing numbers of (mostly different-sex) unmarried couples sought to rent
apartments or houses. During the 1980s and 1990s, there were numerous
lawsuits brought across the country by couples who were refused tenancy by
landlords who disapproved of their choice to live together without being married.
Id.
23. Doe v. Hancock Cty. Bd. of Health, 436 N.E.2d 791, 793 (Ind. 1982) (“[U]nmarried parents have
the same obligations and duties to their child as do married parents . . . .”); see also Leslie I. Jennings-
Lax & Louise T. Truax, Co-Parenting Agreements Between Unmarried Cohabitants, 50 F
AM. L.Q. 349,
361 (2016) (discussing parenting agreements between cohabitants). See generally C
TRS. FOR DISEASE
CONTROL AND PREVENTION, UNMARRIED CHILDBEARING, http://www.cdc.gov/nchs/fastats/unmarried-
childbearing.htm [https://perma.cc/FRT2-TF69] (last visited Feb. 20, 2017) (noting that in 2016, more
than 40% of births were to single women).
24. See Berenson, supra note 21, at 295.
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I. Cohabitation Developments in the United States
Recently, there have been a few legal developments on
cohabitation in the United States, but they are best understood within
the context of the greater framework on cohabitation, which emerged
in the 1970s through the early cases establishing the two approaches
to cohabitation contracts, which are the primary ways to protect
cohabitants.
The majority approach is that contracts between cohabitants are
enforceable regarding the terms of their separation.
25
Scholars have
taken this as evidence of the shift from status to contract in family
law.
26
The minority approach does not recognize such contracts.
27
A. Legal Framework on Cohabitation
The law on cohabitation has a very short history in the United
States. Outside of common law marriage, cohabitants had few rights
until notable case law developed in the 1970s.
28
Marvin v. Marvin in
California established the majority approach on cohabitation in the
United States.
29
In Marvin, Michelle and Lee lived together for seven years without
getting married, and Michelle took his last name.
30
Michelle alleged
25. See infra Part I.A.
26. Jill Elaine Hasday, The Canon of Family Law, 57 S
TAN. L. REV. 825, 835–36 (2004).
Scholars describing the current contractualization of family law . . . cite the
availability of no-fault divorce, the enforceability of prenuptial agreements about
property distribution, and the enforceability of agreements between nonmarital
partners . . . .
. . . But the status-to-contract story overstates the changes that have
occurred in family law over time. It obscures the substantial evidence that
supports a counter-narrative that could be told about family law, but is not: the
story of the persistence of status rules denying individuals choice about the
structure of their relationships.
Id.
27. See infra Part I.A.
28. Cynthia Grant Bowman, A Feminist Proposal to Bring Back Common Law Marriage, 75
OR. L.
REV. 709, 712 (1996) (outlining common law marriage, which is recognized only in a few states today
and requires capacity, agreement, cohabitation, and holding oneself out as married). Common law
marriage and religious cohabitation are beyond the scope of this article.
29. Marvin v. Marvin, 557 P.2d 106, 113 (Cal. 1976).
30. Id. at 110.
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that Lee had promised to support her throughout her life in exchange
for her work as a companion, homemaker, housekeeper, and cook.
31
She argued that because of this oral agreement, she surrendered her
career as an entertainer to devote herself fulltime to the household.
32
Michelle asserted that this oral contract should be enforced, entitling
her to support payments and to half the property that the couple had
acquired during the relationshipincluding motion picture rights
worth more than $1 millioneven though the property was all in
Lee’s name.
33
If Michelle had been a wife rather than a cohabitant, she would
have enjoyed rights to the property acquired during the marriage
under divorce law.
34
At the time Michelle brought her lawsuit, public
policy aimed to discourage cohabitation by withholding remedies for
cohabitants.
35
The California trial court in Marvin v. Marvin granted a judgment
on the pleadings for Lee, resulting in his receipt of all of the couple’s
property upon the break-up of the relationship.
36
The California
Court of Appeals affirmed in Lee’s favor.
37
The California Supreme
Court, however, reversed in favor of Michelle, holding that a contract
between unmarried partners should be enforced except to the extent
that it explicitly rests on the consideration of meretricious sexual
services.
38
It has long been public policy in the United States to disallow
payment for sexual services, but in Marvin, the California Supreme
Court made the distinction between contracts based on domestic
services and those based on sexual relations.
39
The court thus held
31. Id.
32. Id.
33. Id.
34. Rebecca Aviel, Family Law and the New Access to Justice, 86
FORDHAM L. REV. 2279, 2283
(2018).
35. Marvin, 557 P.2d at 112.
36. Id. at 110.
37. Id.
38. Id.
39. Courtney Megan Cahill, Reproduction Reconceived, 101 M
INN. L. REV. 617, 694 (2016).
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that the terms of the contract as alleged by Michelle relied on lawful
consideration, providing a basis for declaratory relief in her favor.
40
Several earlier decisions from the California courts made a similar
distinction.
41
Marvin followed these decisions, citing the principle
that cohabitants should be able to contract with one another regarding
property.
42
Marvin is a watershed case because the California Supreme Court
concluded that if cohabitants lacked an express contract, the court
should inquire into the conduct of the parties to determine whether it
demonstrated an implied contract, agreement of partnership or joint
venture, or some other tacit understanding between the parties.
43
To
resolve these types of cases, the Marvin court allowed the use of the
doctrine of quantum meruit, as well as constructive and resulting
trusts.
44
Given the public policy against cohabitation at the time, the
Marvin decision was important.
45
To reach its decision, the California Supreme Court in Marvin
rejected several reasons previously used to deny relief to cohabitants.
First, the court refused to deny relief as punishment for a nonmarital
relationship because it necessarily rewards the other party.
46
Second,
the court noted that reasonable expectations and equitable
considerations can exist outside of marriage.
47
Third, the court
rejected the idea that services provided with no express contract
would be a gift.
48
Finally, the court rejected the notion that an
equitable distribution of property between nonmarital partners would
discourage marriage.
49
The court noted that, if anything, the
inequitable distribution that would occur if no implied contract was
40. Marvin, 557 P.2d at 116.
41. Id. at 112.
42. Id. at 116.
43. Id. at 122.
44. Id.
45. Deborah Zalesne, The Contractual Family: The Role of the Market in Shaping Family
Formations and Rights, 36 C
ARDOZO L. REV. 1027, 1038–39 n.36 (2015).
46. Marvin, 557 P.2d at 121.
47. Id.
48. Id.
49. Id. at 122.
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recognized would discourage marriage since it would be much to the
advantage of the property holder to remain unmarried.
50
Family law generally falls within the domain of the states,
51
and
after the Marvin decision, most states followed California’s lead,
illustrating a shift in cultural attitudes and public policy.
52
A minority
of states decided not to follow Marvin for public policy reasons, with
Hewitt v. Hewitt notably articulating this view.
53
The Hewitt case from Illinois established the minority approach
that does not enforce cohabitation contracts. In Hewitt, Victoria and
Robert Hewitt cohabitated as students in college.
54
After moving to
Illinois, Robert worked in the medical field while Victoria cared for
their children full-time.
55
Victoria also assisted Robert in building his
medical practice, using her skills and her parents’ financial
assistance.
56
After 15 years of cohabitation, the couple separated and
Victoria filed for divorce.
57
The court dismissed the divorce action
and held that Victoria was not entitled to any remedies,
58
reasoning
that giving her rights would devalue the institution of marriage
59
and
would essentially revive common law marriage, a doctrine that
Illinois abolished in 1905.
60
Ultimately, Victoria could not recover her contributions to the
relationship despite its similarity to marriage.
61
Given the Hewitt
court’s reasoning, a cohabitant could benefit from the other’s
contributions and leave the relationship with the accumulated wealth.
50. Id.
51. Kristin A. Collins, Federalism’s Fallacy: The Early Tradition of Federal Family Law and the
Invention of States’ Rights, 26 C
ARDOZO L. REV. 1761, 1764 (2005) (noting that family law is currently
in the domain of the states, but historically, the federal government was not limited in this way).
52. Ann Laquer Estin & J. Thomas Oldham, Introduction, 50
FAM. L.Q. 213, 213 (2016) (“[M]ost
U.S. states do not treat unmarried cohabitation as a status, and Marvin v. Marvin remains the majority
view regarding how courts should adjudicate the rights of unmarried partners when a relationship
ends.”).
53. Hewitt v. Hewitt, 394 N.E.2d 1204, 1211 (Ill. 1979).
54. Id. at 1205.
55. Id.
56. Id.
57. Id.
58. Id. at 1205.
59. Heweitt, 394 N.E.2d at 1211.
60. Id.
61. Id.
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The Hewitt decision remains good law in Illinois.
62
Illinois has
denied legal protections to cohabitants in other contexts as well,
including claims for loss of consortium.
63
In sum, the traditional rule
regarding cohabitation, which now represents the minority approach
led by Illinois, is that cohabitants do not have any rights between
themselves.
64
In states like Illinois, where cohabitants remain largely
unprotected, people have reason to hesitate before making significant
investments in a nonmarital relationship. Without adequate remedies,
cohabitants could face financial hardship at the end of the
relationship.
65
For these reasons, Hewitt has been debated and the
majority approach has instead recognized contractual rights for
cohabitants.
66
In 2001, the American Law Institute (ALI) proposed a set of rules
to standardize the states’ approaches to cohabitation in the Principles
of the Law of Family Dissolution: Analysis and Recommendations.
67
The ALI drafters proposed that cohabitants, regardless of their
gender, be treated as partners under certain circumstances.
68
The ALI
defined “domestic partnership” as a new legal family status and
addressed its dissolution.
69
62. See, e.g., Ayala v. Fox, 564 N.E.2d 920, 922 (Ill. App. Ct. 1990).
63. Medley v. Strong, 558 N.E.2d 244, 248 (Ill. App. Ct. 1990).
64. Cynthia Grant Bowman, Legal Treatment of Cohabitation in the United States, 26
LAW & POL’Y
119, 126, 142 (2004). Indeed, society generally strongly disapproved of sexual relationships outside of
marriage. See, e.g., Hewitt, 394 N.E.2d at 1210 (rejecting the contract claims between unmarried
cohabitants due to a public policy disfavoring “private contractual alternatives to marriage”);
Schwegmann v. Schwegmann, 441 So. 2d 316, 324 (La. Ct. App. 1983) (noting Louisiana’s interest in
discouraging “relationships which serve to erode the cornerstone of society, i.e., the family”).
65. Margaret Ryznar, All’s Fair in Love and War: But What About in Divorce? The Fairness of
Property Division in American and English Big Money Divorce Cases, 86 N.D.
L. REV. 115, 130–31
(2010). Furthermore, cohabitation may discourage marriage because a divorce likely would mean a loss
of property by the higher income spouse. See, e.g., id.
66. See, e.g., J. Thomas Oldham, Lessons from Jerry Hall v. Mick Jagger Regarding U.S. Regulation
of Heterosexual Cohabitants or, Can’t Get No Satisfaction, 76 N
OTRE DAME L. REV. 1409, 1433 (2001)
(“I have proposed that the current United States approach should be changed, at least for those
cohabitation relationships of some duration where a partner has suffered career damage due to the
relationship, either by being a primary caretaker for a common child or for some other reason.”).
67. See generally A
M. L. INST., Principles of the Law of Family Dissolution § 6.03 (2002); see also
Lynn D. Wardle, Deconstructing Family: A Critique of the American Law Institute’s “Domestic
Partners” Proposal, 2001 BYU
L. REV. 1189, 1192 (2001).
68. Oldham, supra note 66, at 1420.
69. Wardle, supra note 67, at 1195.
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The ALI proposal moved away from Marvin’s implied and explicit
contract approach, instead establishing a series of factors to
determine whether two cohabitants were domestic partners.
70
If so,
remedies would apply to their separation.
71
When cohabitants wanted
to opt out of the commitment, they would do so by written
agreement.
72
However, the ALI was not persuasive with the states,
which retain the Marvin/Hewitt dichotomy and focus on contractual
rights for cohabitants as the main remedy.
73
B. Recent Developments on Cohabitation
While much of the cohabitation legal framework dates back to the
1970s, there have been several cases in recent years addressing
cohabitants’ rights in the United States. First, the Illinois Supreme
Court declined an opportunity to overturn Hewitt and start enforcing
property rights between cohabitants.
74
A second development was a
New Jersey legislative change that became effective in 2010,
requiring cohabitation agreements to be in writing and prompting
several cases.
75
Third, a court in Hawaii had a case of first impression
on whether premarital contributions are considered in dividing a
marital estate.
76
Finally, Vermont expressed the need to formulate
more flexible remedies in acknowledgement of the rise of
cohabitation.
77
These are some of the recent major developments on
cohabitation, with most of the remaining states maintaining the status
quo or offering clarification on previous holdings.
78
70. AM. L. INST., supra note 67, § 6.03.
71. Id.
72. Shahar Lifshitz, Married Against Their Will? Toward a Pluralist Regulation of Spousal
Relationships, 66 W
ASH. & LEE L. REV. 1565, 1583 (2009).
73. Oldham, supra note 66, at 1423, 1425.
74. Blumenthal v. Brewer, 69 N.E.3d 834, 860 (Ill. 2016); see also infra Part I.B.
75. Susan K. Livio, Palimony Claims Only Enforceable with Written Agreement Under New Law
Signed by Gov. Corzine, NJ.
COM (Jan. 19, 2010),
https://www.nj.com/news/index.ssf/2010/01/gov_corzine_signs_bill_that_ch.html
[https://perma.cc/Q9PN-DQR8].
76. Collins v. Wassell, 323 P.3d 1216, 1225 (Haw. 2014).
77. Wynkoop v. Stratthaus, 136 A.3d 1180, 1194 (Vt. 2016).
78. Bowman, supra note 64, at 126.
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Most notably in the last few years, a challenge to Hewitt arose in
Illinois in 2015. In Blumenthal v. Brewer, the Illinois Court of
Appeals held that a woman could bring claims against her former
partner for property they owned together.
79
The Illinois Supreme
Court did not uphold this decision.
80
In Brewer, Jane Blumenthal and Eileen Brewer became same-sex
domestic partners in the early 1980s.
81
Despite the absence of same-
sex marriage in Illinois, the couple exchanged rings and presented
themselves as a committed lifelong couple.
82
For almost three decades, Blumenthal and Brewer built a life
together, combined their finances, and raised three children.
83
While
Blumenthal focused on providing financial support for the family,
Brewer spent a substantial amount of time caring for their children
and home.
84
After the relationship ended, Blumenthal sought
partition of the property she owned with Brewer during their
relationship.
85
Brewer counterclaimed for various common law
remedies, including sole title to the home and an interest in
Blumenthal’s ownership share in a medical group.
86
The
counterclaim aimed for the couple’s overall assets to be equalized at
the end of the cohabitation.
87
The Illinois Court of Appeals held that
the state’s “public policy of prohibiting unmarried domestic partners
from bringing common-law claims against one another no longer
exists” and that Brewer may continue with her claims regarding the
property they acquired during the relationship.
88
The Illinois Supreme Court heard the appeal, but declined to
overrule Hewitt. The court determined that cohabitants cannot bring
79. Blumenthal v. Brewer, 24 N.E.3d 168, 183 (Ill. App. Ct. 2014).
80. Blumenthal v. Brewer, 69 N.E.3d 834, 860 (Ill. 2016).
81. Id. at 840.
82. Id. at 852.
83. Id.
84. Id.
85. Id. at 839.
86. Blumenthal, 69 N.E.3d at 839.
87. Id.
88. Id. at 840.
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property claims,
89
noting that any changes to this approach should
come from the state legislature.
90
In sum, the Illinois Supreme Court refused to overrule Hewitt
when provided the opportunity in recent years, denying cohabitants
contract and property rights. This decision illustrates the continued
lack of legal developments on cohabitation in the United States
despite demographic shifts toward cohabitation.
91
However,
Obergefell v. Hodges may have mooted a major reason for cohabitant
protection, which was to protect same-sex couples unable to marry.
92
Nonetheless, other reasons remain for cohabitation contracts, such as
protecting the vulnerable cohabitant.
Meanwhile, a legislative change prompted new case law in New
Jersey. In January 2010, the New Jersey legislature amended the
palimony statute governing support claims between separated
cohabitants to require written agreements.
93
Following this change,
separated cohabitants brought two noteworthy cases. In the first case
in 2014, the court determined that New Jersey Statutes § 25:1-5 did
not apply retroactively to oral palimony agreements made prior to
January 2010.
94
Additionally, the court stated that this statutory
change superseded the holdings in In re Estate of Roccamonte and
Kozlowski v. Kozlowski, both of which upheld oral cohabitant
agreements.
95
Subsequently, in the unpublished federal case of Sook
Hee Lee v. Kim, the appellant made a § 1983 claim challenging the
validity of the New Jersey statute.
96
However, this challenge failed
and was dismissed due to the appellant’s failure to state a claim for
violation of her First Amendment privacy rights, her Fourteenth
Amendment equal protection rights, or her Fourteenth Amendment
privacy rights relating to familial matters.
97
89. Id. at 859.
90. Id. at 858.
91. See id. at 853.
92. Obergefell v. Hodges, 135 S. Ct. 2584, 2642 (2015).
93.
N.J. STAT. ANN. § 25:1-5 (2010).
94. Maeker v. Ross, 99 A.3d 795, 805 (N.J. 2014).
95. Id.; see also In re Estate of Roccamonte, 808 A.2d 838, 843 (N.J. 2002); Kozlowski v.
Kozlowski, 403 A.2d 902, 906 (N.J. 1979).
96.
Lee v. Kim, 654 F. App’x 64, 66 (3d Cir. 2016).
97.
Id. at 69.
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Many other cases on cohabitation in recent years focused on the
contractual nature of cohabitation.
98
Indeed, some courts distinguish
property divisions based on cohabitation and those based on
principles regarding shared property.
99
This may be a solution for
some cohabitants in states that are reluctant to enforce contracts
based on companionship.
100
For example, in 2016, the New Hampshire Supreme Court stated
that the division of property between cohabitants was not a divorce-
like remedy, but rather a division of property based on equitable
determination of petitioner’s rights in two parcels of real property.
101
In another case, the Vermont Supreme Court focused on the fact
that the two parties were colessees even though they were also
unmarried cohabitants.
102
In this case, the court crafted a somewhat
flexible remedy for the plaintiff cohabitant in the context of the
parties’ alleged agreement for the plaintiff to quit her job and serve as
the general contractor for the construction of the couple’s property
while the defendant supported them both through his income.
103
The
court stated that there is a need for flexible remedies in equity to
meet modern and more complex circumstances.
104
Similarly, contract consideration was at the essence of Dooner v.
Yuen, which involved the Minnesota palimony statute and the
division of real property.
105
This case addressed a woman’s
98. See June Carbone & Naomi Cahn, Nonmarriage, 76 MD. L. REV. 55, 121 (2016) (“Nonmarriage,
as a new legal status, could be conceptualized as the ability to craft custom arrangements, even if they
are seemingly unequal. That is, marriage is a fixed institution premised on equality with a set of clear
rules, while nonmarriage implies the freedom to contract on a continuum of terms. Because the law does
not impose those terms, greater autonomy is possible, but formal equality between parents is not
mandated and may not be appropriate. The law can only routinize these relationships if it acknowledges
the reasons parents choose non-marriage over marriage, and incorporates these differences into both
financial and custody decisionmaking.”).
99. See infra notes 101–10.
100. See infra notes 111–14.
101. Brooks v. Allen, 137 A.3d 404, 410 (N.H. 2016). The court previously held that until the
legislature directs differently, the court would not recognize an implied contract based on homemaking
services. Tapley v. Tapley, 449 A.2d 1218, 1219 (N.H. 1982).
102. Wynkoop v. Stratthaus, 136 A.3d 1180, 1187 (Vt. 2016).
103. Id. at 1190.
104. Id. at 1188.
105 Dooner v. Yuen, Civ. No. 16–1939 (RHK/SER), 2016 WL 6080814, at *2 (D. Minn. Oct. 17,
2016). The statute at issue was M
INN. STAT. § 513.075 (2017).
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counterclaim to half the proceeds from the sale of her cohabitant’s
real property.
106
She relied on a signed, handwritten document
describing the cohabitants’ mutual financial plans and agreements.
107
However, the court found no consideration for the contract.
108
Her
additional claims for relief under promissory estoppel and unjust
enrichment also failed.
109
Unlike in other cases, the fact that the item
in dispute was real property did not help her.
110
Conversely, Nevada has allowed both express and implied
contracts based on companionship and other factors, thus eliminating
the need to base the division upon the separate laws of real
property.
111
In the recent unpublished case of Bumb v. Young, the
Nevada Supreme Court confirmed its position that property may be
divided based on express or implied agreement of support in
exchange for companionship, partnership, and business and personal
assistance under the state’s community property by analogy
doctrine.
112
Alaska also allows for division based on express or implied intent.
The recent case of Boulds v. Nielsen provides guidance for lower
courts when determining express or implied intent regarding property
division.
113
In this case, the court allowed the division of a pension
between two cohabitants upon dissolution of their relationship based
on their intent.
114
Another set of circumstances relating to cohabitation arises when
the cohabitants marry and then divorce. Courts must then determine
how they should divide property acquired prior to the marriage upon
divorce. Two recent cases from Hawaii clarify the term “premarital
106.
Id. at *1.
107. Id.
108.
Id. at *2.
109. Id. at *3.
110.
Dooner, 2016 WL 6080814 at *2–3.
111.
Bumb v. Young, No. 63825, 2015 WL 4642594, at *1 (Nev. Aug. 4, 2015).
112. Id.
113. Boulds v. Nielsen, 323 P.3d 58, 113 (Alaska 2014).
114. Id. See also Tomal v. Anderson, Supreme Court Nos. S-16720/16760, 2018 WL 4170879, at *4
n.15 (Alaska Aug. 31, 2018) (clarifying that when considering property after the end of a domestic
partnership, “the correct rule is that what the parties intended is a question of fact, and the legal
significance of that intent is a question of law”).
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economic partnership.”
115
First, in Collins v. Wassell, as a matter of
first impression, the court held that premarital contributions are to be
considered when dividing the marital estate.
116
Further clarification
came from Hamilton v. Hamilton, where the court discussed the
factors to be considered in determining whether the parties intended
to form a premarital economic partnership.
117
These considerations
include joint acts of a financial nature, duration of cohabitation,
whether and the extent to which finances are commingled, and
economic and noneconomic contributions to the household for the
couple’s mutual benefit.
118
New Jersey also recently heard a case regarding cohabitants who
later married and divorced. In Thieme v. Aucoin-Thieme, the parties
sought determination of whether a wife was entitled to a portion of a
husband’s work bonus in the divorce.
119
The court determined that
the wife was entitled to equitable distribution of the portion of the
bonus earned during their fourteen-month marriage, but not the
portion of the bonus that was earned during their eight-year
cohabitation.
120
However, the court held that under the theory of
unjust enrichment, the wife was able to recover a portion of the
bonus that was earned during their cohabitation period.
121
The federal income tax code continues to inadvertently encourage
cohabitation in some circumstances. This is due to the marriage
penalty resulting from some income tax brackets that do not double
upon marriage and phase-outs of certain tax benefits whose
thresholds are not double those of single filers.
122
One study has
shown that if they married, more cohabiting couples would be
penalized by the marriage penalty in tax law than would receive the
115. Hamilton v. Hamilton, 378 P.3d 901, 915 (Haw. 2016); Collins v. Wassell, 323 P.3d 1216, 1218
n.1 (Haw. 2014).
116. Collins, 323 P.3d at 1226.
117. Hamilton, 378 P.3d at 915.
118. Id.
119. Thieme v. Aucoin-Thieme, 151 A.3d 545, 548 (N.J. 2016).
120. Id. at 556.
121. Id. at 559.
122. See, e.g., Christine D. Allie, Negating the Cost of “I Do”: Ending the United States Tax Code’s
Family Penalty Through Permissive Joint Filing, 78
LA. L. REV. 499, 506 (2018).
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marriage bonus.
123
Republicans and Democrats both recognize the
problem with the marriage penalty,
124
but it has persisted because of
the elusiveness of comprehensive solutions.
125
In sum, cohabitation continues to be separate and legally distinct
from marriage in the United States. In cohabitation, there are fewer
rights and obligations than in marriage.
126
Cohabitants’ contract
rights are the primary way to protect cohabitants. Among the states
that recognize cohabitation contracts, there are variations regarding
whether the contract must be written or oral, as well as express or
implied.
123. Emily Y. Lin & Patricia K. Tong, Marriage and Taxes: What Can We Learn from Tax Returns
Filed by Cohabiting Couples?, 65 N
AT’L TAX J. 807, 809 (2012) (noting that “48 percent of cohabiting
couples . . . would have a tax increase if they were married and filed jointly”); see also Mitchell L.
Engler & Edward D. Stein, Not Too Separate or Unequal: Marriage Penalty Relief After Obergefell, 91
WASH. L. REV. 1073, 1075 (2016) (“While same-sex couples may now marry throughout the United
States, the joint return system imposes a significant cost on many of them. As a result, some such
couples may decide to cohabitate in lieu of marriage or to opt for a civil union, domestic partnership, or
other marriage-like relationship. This is because many same-sex couples are relatively even earners.”).
124. Fa’Asamala v. Comm’r, No. 9220–97 (T.C. filed Apr. 9, 1998) (“Additionally, petitioners’
concern about the ‘marriage penalty’ is currently a matter which is being considered by members of
Congress.”) (citing Marriage Tax Elimination Act, H.R. 2456, 105th Cong. § 2 (1997); Marriage Penalty
Relief Act, H.R. 2593, 105th Cong. § 2 (1997)); see also Calmes v. U.S., 926 F. Supp. 582, 593 (N.D.
Tex. 1996) (“The Court believes that this is a classic example of the right hand not knowing (or caring)
what the left hand is doing. The President and Congress extol the virtues of marriage and the family,
debate per-child tax credits and laud the demise of the marriage-penalty present in the tax code, while
the agency itself attempts to have its Texas community property cake and eat it too.”); Lawrence
Zelenak, Doing Something About Marriage Penalties: A Guide for the Perplexed, 54
TAX L. REV. 1, 1–2
(2000) (noting that although proposed bills in the late 1990s and early 2000s offered such relief, the
President them for different reasons).
125. Lawrence Zelenak, For Better and Worse: The Differing Income Tax Treatments of Marriage at
Different Income Levels, 93 N.C.
L. REV. 783, 784 (2015) (“As a matter of simple arithmetic, it is
impossible for a tax system to feature simultaneously (1) progressive marginal tax rates, (2) joint filing
by married couples (in the service of producing equal taxes on equal-income married couples), and (3)
marriage neutrality (that is, no tax marriage penalties or bonuses). If the legislature insists on the first
two features, as Congress has for many decades, then the third desideratum is
unachievable . . . . Although a legislature committed to the first two goals must violate marriage
neutrality, the legislature has a great deal of freedom to determine whether, and to what extent, to skew
the neutrality violations toward either marriage penalties or marriage bonuses.”). Id. at 792 (“When
cohabitation was not a socially available counterfactual to marriage, neither marriage penalties nor
bonuses were likely to have much visceral impact.”).
126. See, e.g., Courtney G. Joslin, The Gay Rights Canon and the Right to Nonmarriage, 97 B.U.
L.
REV. 425, 429–30 (2017) (“Regardless of how long they have been living together or how financially
independent they are, unmarried partners typically cannot sue for wrongful death. Unmarried partners
are not entitled to spousal social security benefits in the event of the disability of one of them.
Individuals who are in mutually dependent but unmarried relationships are not entitled to take leave
under the Family and Medical Leave Act to care for each other. In many states, an unmarried partner
who agrees to have a child through assisted reproduction is a legal stranger to the resulting child.”).
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Courts appear to be deferring to state legislatures for further
guidance. As cohabitation increases, however, some courts may be
expanding cohabitants’ rights by focusing on existing real property
laws or equitable principles.
II. Cohabitation Developments in Poland
Cohabitation remains outside the scope of Poland’s family and
guardianship code,
127
although it is a form of family for many people,
especially when it spans several years and produces children.
Although, Polish legislation does not recognize cohabitation, it is
legal.
128
Some scholars have argued for the recognition of
cohabitation and for the regulation of at least some of its aspects.
129
Without legislative regulation on cohabitation, the key guidance
for cohabitants is judicial.
130
Different legal approaches are used
when a cohabitation ends and there is a property dispute.
131
The
definition of cohabitation is controversial, and it is not clear whether
it includes same-sex couples,
132
although recently it has included
both same- and opposite-sex couples.
133
At the beginning of the relationship, cohabitants seldom consider
issues related to property.
134
Only the most proactive cohabitants
attempt to govern their property relationship by entering into an
agreement, which becomes important when the cohabitation ends and
127. See Anna Stępień-Sporek et al., Some Remarks on Cohabitation in Poland, THE INT’L SURV. OF
FAM. L. 247, 251 (2015).
128. Id. at 247.
129. Mirosław Nazar, Cywilnoprawne Zagadnienia Konkubinatu de lege Ferenda,
12 PAŃSTWO I
PRAWO 103, 103–13 (1989).
130. Id.
131. Seweryn Szer, Konkubinat, 13 S
TUDIA CYWILISTYCZNE 358 (1969).
132. Brunon Paul, Koncepcja Rozliczeń Majątkowych Między Konkubentami, 3 P
RZEGLĄD SĄDOWY
16 (2003) [hereinafter Koncepcja]; see also Marek Stus, Instytucjonalizacja Związków Partnerskich i
Małżeństw Homoseksualnych w Ustawodawstwie Państw Europejskich, 5 P
AŃSTWO I PRAWO 74 (2005);
Boleslaw Banaszkiewicz, Problem Konstytucjonalnej Oceny Instytucjonalizacji Związków
Homoseksualnych, 2 K
WARTALNIK PRAWA PRYWATNEGO 359 (2004).
133. Filip Hartwich, Konkubinat—Dylematy Prawne, 3-4 P
ALESTRA 57, 57–71 (2007).
134. See generally Sean Hannon Williams, Sticky Expectations: Responses to Persistent Over-
Optimism in Marriage, Employment Contracts, and Credit Card Use, 84 N
OTRE DAME L. REV. 733,
757–61 (2009).
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the property acquired during the relationship becomes the subject of
dispute.
135
Indeed, in the context of cohabitation, the decision to acquire
property is often accompanied by emotion instead of logic. Although
this is similar to married couples, the law of community
propertythe default marital property system in Polandprotects
the rights of spouses if they avail themselves of it.
136
It is well-
established, however, that these rules for married couples do not
apply to cohabitants because cohabitation is not analogous to
marriage, as confirmed in the resolution of the Polish Supreme Court
of July 2, 1955 (case no. II CO 7/ 55).
137
The rules on community
property between spouses should therefore not be used for
cohabitants.
138
Instead, the judge hearing the cohabitants’ case must
apply general principles of law.
139
Nonetheless, it is not possible to completely ignore the nature of
the union of cohabitants. Their intimate relationship affects their
decisions to some extent, and their behavior can be very close to
marital. These are some of the justifications for the legal protection
of cohabitants, especially for the more vulnerable party of the
relationship.
140
Indeed, there have been several legal protections
applied to cohabitants in recent years.
141
135. Id.
136. If spouses have entered into a marital property agreement, their situation may not differ from
cohabitants, but then they need to make a deliberate choice and consider their decision. See Margaret
Ryznar & Anna Stepień-Sporek, To Have and to Hold, for Richer or Richer: Premarital Agreements in
the Comparative Context, 13 C
HAP. L. REV. 27, 53 (2009).
137. See also, e.g., Sądu Najwyższego [Supreme Court of Poland], June 27, 1996, III CZP 70/96
(OSNC 1996/11/145, LEX nr 25824); Sądu Najwyższego [Supreme Court of Poland], May 16, 2000, IV
CKN 32/00 (OSN 2000/12/222, LEX nr 43414).
138. Sądu Apelacyjnego w Krakowie [Court of Appeals in Kraków], April 29, 2014, I ACa 527/13
(LEX nr 1602935).
139. See infra Part II.
140. Emily Sherwin, Love, Money, and Justice: Restitution Between Cohabitants, 77
U. COLO. L.
REV. 711, 720 (2006) (noting a few jurisdictions that protect cohabitants in relationships similar to
marriage).
141. See infra Part II.
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A. The Nature of the Legal Actions of Cohabitants
In addition to the emotional factor in property transfers between
cohabitants, many of these transfers are made informally and without
consideration of whether the property is common property or
separate property.
142
Yet, the classification of property becomes
essential at the end of the cohabitation or in the event of a conflict
between the cohabitants.
The constructive element of the legal action is the intent of the
party.
143
In settling property disputes between cohabitants, it is
necessary to separate acts of kindness from those that have legal
consequences.
144
In practice, this is extremely difficult, and the
context of the action should be examined, as it may not be detached
from the particular emotional situation that arises between
cohabitants.
A kind act done by one cohabitant for the other prevents the
application of the unjust enrichment doctrine.
145
As a consequence,
there is no obligation to return such a donation.
146
Many actions
during a cohabitation should be treated as kind acts because the intent
of the party was steered toward gratuitous actions at the time.
A cohabitation in itself does not prevent the existence of a
contractual relationship between the cohabitants.
147
Similarly, marital
status does not affect the capacity of the spouses to enter into
contracts between themselves, including civil partnerships and
contractual transfers of property.
148
This does not mean, however,
that cohabitation contracts can be viewed in the same way as
contracts between unrelated individuals. However, if the court
establishes that the cohabitants have entered into a contract, the rules
of that contract should apply. Therefore, the first step of the court
142. Brunon Paul, Problemy Rozliczeń Majątkowych Między Konkubentami, 8 MONITOR PRAWNICZY
357 (2002) [hereinafter Problemy].
143. Id.
144. Id. at 357.
145. Id.
146. Id.
147. Id. at 357
148. Problemy, supra note 142, at 358.
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should be to examine whether there are any contracts between the
cohabitants.
Economic and legal interests should be taken into account when
considering the actions of cohabitants. Homemaking is an example—
as a general rule, such duties are fulfilled according to mutual
agreements, are free of charge, and neither partner claims payment.
This changes at the end of a cohabitation, when one partner may
make claims for compensation. Still, the determinative factor is the
intent of the cohabitants.
B. The Legal Classification of Actions Performed Between
Cohabitants
Legal acts by cohabitants for each other can be classified as
donations,
149
justified by the fact that there are emotional bonds
between them that make them willing to perform activities free of
charge.
150
However, such categorizations should not be abused
because even in marital relationships, not all legal acts between
spouses are of a gratuitous nature.
151
For example, in the division of
common property upon the termination of a marriage, one spouse can
successfully seek remuneration for work done in the other spouse’s
business.
152
When classifying the actions of cohabitants, it is important to
consider the moment of their completion, which usually results in the
recognition that a donation took place. Admittedly, after many years,
cohabitants may be inclined to claim that their actions were of a
different character than a donation, but the court should be cautious.
Furthermore, the court cannot ignore the changes in the moral
assessment of both cohabitation and the relevant property transfers in
the last few decades.
153
149. Szer, supra note 131, at 360.
150. Id.
151. Id.
152. Id.
153. Compare the remarks made in 1969 by Seweryn Szer in Szer, supra note 131, at 361–62.
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A possible solution is to revoke the donation due to the “blatant
ingratitude of the beneficiary.”
154
However, it is necessary to
remember the time limit for revoking a donation in Art. 899 § 3 of
the Civil Code.
155
Also, it is important to consider the meaning of
blatant ingratitude.
156
The termination of a cohabitation is not
necessarily considered blatant ingratitude because a characteristic of
cohabitation is that either cohabitant can terminate it at any time for
no particular reason.
157
The extent to which society’s moral norms must be violated to
constitute blatant ingratitude of the beneficiary is difficult to
determine in a general way.
158
It should be noted that even in
marriage:
. . . [V]iolation of marital obligations referred to in Art. 23
k.r.o., i.e. mutual assistance and fidelity, and cooperation
for the good of the family, which spouses have established,
cannot be the basis for revoking of donation. It is important
for the beneficiary to commit a gross ingratitude to the
spouse, which is the subject of a court investigation, taking
into account the circumstances of the case.
159
Thus, blatant ingratitude cannot just be the termination of the
cohabitation. It must be something more, such as ending the
relationship in a very difficult time for the cohabitant like during an
illness. If the criteria were easier, then the revocation of a donation
could be a sanction for ending the cohabitation.
160
154. KODEKS CYWILNY (CIVIL CODE), Art. 898, § 1 (“A donor may revoke a donation even if already
made if the donee manifests gross ingratitude towards him.”).
155. Id. at Art. 899, § 3 (“A donation cannot be revoked after one year has passed from the day on
which the person entitled to revoke it learns of the donee’s ingratitude.”).
156. A
NDRZEJ SZLĘZAK, STOSUNKI MAJĄTKOWE MIĘDZY KONKUBENTAMI: ZAGADNIENIA
WYBRANE 57 (1992).
157. Id.
158. See Appeal Court Łódź, Oct. 25, 2016, I Aca 485/16, LEX No. 2200342 (Pol.).
159. Id.
160. S
ZLĘZAK, supra note 156, at 57.
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C. Partnership
The provisions on civil partnership, which is characterized by a
lack of formalism, may be helpful in settling cohabitants’ legal
actions.
161
These provisions can be applied to implicit contracts
between cohabitants,
162
although the starting point would have to be
that the cohabitants entered into this type of contract.
163
If it is not
possible to assume that there was a contract between cohabitants,
then the other rules regarding civil partnership might be applicable. If
it is possible to apply the provisions regarding civil partnership to
cohabitants, one can settle contributions by the services and property
of the partners.
However, the entire regulation on civil partnership cannot be
applied to cohabitation.
164
Although it is possible to pursue a
common economic goal, it is usually the personal relationship of the
cohabitants that is most significant. Regarding cohabitants, as in the
case of spouses, there are no objections to the joint implementation of
certain undertakings. In this case, recourse to the provisions on the
civil law partnership is justified. However, the application of the civil
partnership regulation cannot go too far, and it is indispensable in
that case to distinguish property relations that are similar to
relationships in civil partnerships. Other relationships remain outside
of these rules.
D. Unjust Enrichment
Many courts use the provisions on unjust enrichment, namely the
regulation on undue performance, to settle the cohabitants’ disputes
regarding property.
165
Unjust enrichment can apply, for example, in
161. Tomasz Jasiakiewicz, Rozliczenia Majątkowe Pomiędzy Osobami tej Samej płci Pozostającymi w
Związku Faktycznym i Prowadzącymi Wspólnie Działalność Gospodarczą, 2 G
LOSA 122, 122–27
(2010).
162. Problemy, supra note 142, at 359.
163. See Koncepcja, supra note 132, at 24–27.
164. Problemy, supra note 142, at 359.
165. Andrzej Szlezak, Cohabitation Without Marriage in Poland, 5 I
NT’L J. OF LAW, POLICY & THE
FAMILY 1, 8-9 (1991).
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cases of services provided in a common household.
166
However, this
is controversial and should be used as a last resort.
167
Cohabitants provide services for various reasons resulting from
their special relationship, including a belief that they are obliged to
pay maintenance or that it will guarantee a long-lasting relationship,
which is the most common situation and the simplest to prove. The
causal conditions of causa data causa non secuta are fulfilled
because the purpose of the union cannot be attained.
The advantage to relying on unjust enrichment is that the
cohabitant can demand reimbursement for services provided.
168
The
drawback is that, according to Art. 411(2) of the Civil Code, the
cohabitant cannot demand the return of services if the performance of
the services satisfies the principles of community life.
169
It is
necessary to closely examine all of the circumstances of the
particular case because not all benefits between cohabitants are due
to the principles of social coexistence.
170
E. Co-ownership
The mere existence of a cohabitation does not preclude co-
ownership.
171
A co-ownership contract can be sought by the buyers
of a property with the buyers acquiring appropriate rights to the
property.
172
There are two relevant presumptions concerning possession: the
presumption of owner-like possession in Art. 339 of the Code and the
166. Id. See also William N. Eskridge Jr., Family Law Pluralism: The Guided-Choice Regime of
Menus, Default Rules, and Override Rules, 100 G
EO. L.J. 1881, 1930 (2012) (“[B]y providing
household services or support for a partner’s career or business, the claiming partner has established an
equitable basis for recovering the value of her or his services.”).
167. Marek Sobczyk, Rozliczenia Między Stronami Związków Partnerskich na Podstawie Przepisów o
Bezpodstawnym Wzbogaceniu, 24 K
WARTALNIK PRAWA PRYWATNEGO 381, 381 (2015).
168. K
ODEKS CYWILNY (CIVIL CODE), Art. 405.
169. Id. at Art. 411(2) (“The return of a performance cannot be demanded . . . if the performance
satisfies the principles of community life”).
170. Problemy, supra note 142, at 360.
171. Polish Supreme Court, June 27, 1996, OSNC 1996, poz. 145 (1996); see also Appeal Court in
Bialystok, June 12, 2014, I Aca 601/13 (2014).
172. Handbook for Real Estate Transactions, D
ELOITTE 138 (2017),
https://www2.deloitte.com/content/dam/Deloitte/global/Documents/Legal/dttl-legal-deloitte-legal-
handbook-for-real-estate-transactions.pdf [https://perma.cc/BXX6-MLXF].
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compliance with the law of possession in Art. 341 of the Code.
173
The mere demonstration of possession by both cohabitants could
trigger these presumptions and lead to the conclusion that they are
co-owners of certain property.
174
These presumptions are particularly important with regard to
movables. The transfer of real estate can be made only in notarial
deed according to Art. 158 of the Civil Code, and the notary public is
obliged to ask cohabitants how they want to establish ownership of
the acquired property.
175
F. Supplementary Claims
In addition to the protections for property co-owners, a former
cohabitant is entitled to the claims referred to in Arts. 224–31 of the
Civil Code when the cohabitant was still using the property after the
termination of the cohabitation.
176
The earlier personal relationship of
the former cohabitants does not matter for this protection.
It is also worth mentioning the possibility of using the protection
provided by Art. 231 § 1 of the Civil Code, which often applies when
one of the cohabitants has built on the real estate of the other
cohabitant.
177
Court decisions have established that such claims can
also be used by the person who possesses the land with its owner,
with the co-possessor able to request that the ownership of the
property be transferred to him or her. Indeed, it cannot be overlooked
that, as a rule, a cohabitant at least implicitly has agreed to the use of
the property by a cohabitant.
It is problematic in this case if the cohabitant acts in good faith.
Usually, cohabitants know their financial situation. A liberal
interpretation of the doctrine assumes that if the owner of the
property did not provide the grounds for accepting that the co-owner
of the property is the owner, then the co-owner should be regarded as
acting in bad faith. According to this reasoning, good faith is
173. KODEKS CYWILNY (CIVIL CODE), Arts. 339, 341.
174. Szlezak, supra note 165, at 9.
175. K
ODEKS CYWILNY (CIVIL CODE), Art. 158.
176. Id. at Arts. 224–31.
177. Id. at Art. 231 § 1.
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attributed to a cohabitant when the owner of the property creates a
situation in which it might appear that the partner has a legal right to
act.
In this doctrine, there is also a view referring to the principles of
social coexistence, in which the possessor, in bad faith, should be
treated as a holder who is formally in good faith. It is important, at
this point, to thoroughly investigate the circumstances of the case and
whether there is a particular degree of trust between the parties to the
relationship which may justify a departure from the need to meet the
formal requirements of good faith.
G. Torts
An injury to a partner’s property or shared property will result in
liability for tort damages if the injury meets the general elements of a
tort.
178
However, liability is excluded for certain damages caused by
a cohabitant’s negligence.
179
This is justified by the fact that those
living in a common household should be aware of certain
unfavorable changes in their property resulting from the mistakes and
actions of their partners.
The separation of cohabitants does not give rise to liability for
damages.
180
The essence of a cohabitation is that it can be ended at
any time, so even a unilateral decision to leave this relationship
cannot be regarded as contrary to the principles of social coexistence.
H. Burden of Proof
Important in settling disputes between cohabitants may be proving
certain circumstances.
181
However, legal actions do not always
proceed according to proper form given the personal relationship
between the cohabitants. In this context, the question is whether the
178. Id. at Art. 415.
179. Id. at Art. 440.
180. Problemy, supra note 142, at 361.
181. USTAWA
Z DNIA 17 LISTOPADA 1964 R. KODEKS POSTĘPOWANIA CYWILNEGO [CIVIL
PROCEDURE CODE], tit. 7, ch. 2, art. 441, translated at https://www.global-
regulation.com/translation/poland/7049655/act-of-17-november-1964%252c-the-code-of-civil-
procedure.html [https://perma.cc/YY4M-J5Y2].
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evidence of the witnesses or the hearings of the parties is admissible
as the only means of evidence available in such cases.
182
The Civil
Procedure Code may, in principle, prevent certain circumstances
from being demonstrated.
183
I. Limitation Period for Claims
Limitation periods are not unique to cohabitants, although their
relationship may be similar to that of spouses.
184
With regard to the
latter, the limitation period does not begin for the duration of the
marriage.
185
This is due to the existence of a special, personal
relationship between the spouses and, in the course of the spousal
cohabitation, it is possible to refrain from seeking redress.
Similarities between cohabitation and marriage could lead to the
application of provisions limiting the limitation period to
cohabitation by analogy. Nonetheless, these two relationships are
fundamentally different, and the case law does not extend the rules of
settlement between spouses to cohabitants.
186
In disputes between cohabitants, protection can be justified on the
basis of the institution of abuse of rights. If the claimant has lodged a
claim after the expiration of the limitation period, the limitation of
the claim may be assessed in the context of compliance with the
principles of social coexistence.
187
Another possible solution in this
case is to argue that the claims of the cohabitants become due or that
the time of the dissolution of the relationship may be the earliest time
to investigate. From this point on, the limitation period should start
its course. However, this position is not enough to justify de lege
lata.
188
182. KODEKS CYWILNY (CIVIL CODE), Art. 74, § 1; Arts. 246–47.
183. USTAWA
Z DNIA 17 LISTOPADA 1964 R. KODEKS POSTĘPOWANIA CYWILNEGO [CODE OF CIVIL
PROCEDURE], tit. 7, ch. 2, art. 441.
184. Koncepcja, supra note 132, at 40.
185. K
ODEKS CYWILNY (CIVIL CODE), Art. 121, § 3.
186. The resolution of the Supreme Court of 8
th
August 1986, III CZP 45/86, OSNC 1987, position
95.
187. See supra text accompanying note 170.
188. M
IROSŁAW NAZAR, ROZLICZENIA MAJĄTKOWE KONKUBENTÓW 200 (1993); SZLĘZAK, supra
note 156, at 72.
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III. A Comparative Analysis
The legal developments on cohabitation in the United States and
Poland have slowed in recent years.
189
In the United States, the
Hewitt case from Illinois established the minority approach of
American courts to cohabitation, which is to not enforce cohabitation
contracts on public policy grounds.
190
In 2016, the Illinois Supreme
Court declined to overrule Hewitt despite the opportunity to do so.
191
Although there have been several additional cohabitation cases in
recent years across the country, major doctrinal strides have been
limited.
192
In Poland, there are new court decisions regarding cohabitation,
but they are similarly limited.
193
Indeed, the question remains among
Polish lawmakers and judges whether a legal response to this social
phenomenon is necessary. Although the number of cohabitations is
increasing, the pro-family policy of the law continues to aim to
protect marriage as a basic structure of family. The demographic
trends on cohabitation in Poland, however, are similar to those in
other European countries and the United States in that they are
increasing.
194
Cohabitation contracts setting the terms of a separation remain the
primary way that cohabitants can protect themselves.
195
However,
189. This has not historically been true. As illustrated by the development of the United States law on
cohabitation (and, in particular, on contract enforcement between cohabitants), there have been spurts of
legal development on the topic. See supra Part I. As Professor Mary Ann Glendon wrote in 1989, many
countries had “a progressive withdrawal of official regulation of marriage formation, dissolution, and
the conduct of family life” and “increased regulation of the economic and child-related consequences of
formal or informal cohabitation.” M
ARY ANN GLENDON, THE TRANSFORMATION OF FAMILY LAW:
STATE, LAW, AND FAMILY IN THE UNITED STATES AND WESTERN EUROPE 2 (1989).
190. Hewitt v. Hewitt, 394 N.E.2d 1204, 1210 (Ill. 1979).
191. Blumenthal v. Brewer, 69 N.E.3d 834, 853 (Ill. 2016); see also supra Part I.B.
192. See supra Part I.B.
193. See supra Part II.
194. See supra Introduction.
195. Marsha Garrison, Is Consent Necessary? An Evaluation of the Emerging Law of Cohabitant
Obligation, 52 UCLA
L. REV. 815, 815 (2005). Today still, “[i]n the United States . . . unmarried
cohabitants have no obligations to each other unless they have contracted to assume such obligations.”
Id.; see also Erez Aloni, The Puzzle of Family Law Pluralism, 39 H
ARV. J.L. & GENDER 317, 317
(2016) (“As . . . scrutiny of prenuptial and cohabitation agreements reveals, neoclassical contract theory
is slowly taking over family law.”).
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this is only an effective method if courts recognize and enforce such
contracts.
196
Furthermore, cohabitants must know about this option to
enter into such contracts. Thus, it is important to promote the idea of
contractual regulation of property relationships between cohabitants,
especially if the state legislature is silent on the issues.
In both the United States and Poland, such contracts are not
currently popular and instead general legal principles apply at the end
of the cohabitation.
197
However, this may not be the best solution
because the general rules are universal and do not take into account
the larger context of the behavior of cohabitants who undertake
various decisions and legal actions outside of a legal framework.
Furthermore, the emotional underpinning of cohabitation should play
an important role in judicial determinations.
Legislators differ on what additional legal protections should
extend to cohabitants.
198
Trial marriages, long-term cohabitations
with children, and older cohabitants with adult children from
previous relationships are all different—making it difficult for
legislators to craft one law to apply to them all. For example, a
woman might spend a night with her boyfriend a few times per week,
keeping a toothbrush and sock drawer at his apartment. Or, a woman
might buy a condo with her boyfriend and share a joint bank account.
Cohabitation scenarios, therefore, widely differ.
Furthermore, legislators may want to protect individual
cohabitants while not encouraging the institution of cohabitation as a
substitute for marriage given some of the benefits of marriage and
drawbacks of cohabitation.
199
One of the major drawbacks to
196. Ann Laquer Estin, Marriage and Divorce Conflicts in International Perspective, 27 DUKE J.
COMP. & INT’L L. 485, 487–88 (2017). Generally speaking, “[i]n the context of global families, the case
for allowing couples to select the law that will apply to their personal and property interests seems
especially strong.” Id.
197. See infra Parts I & II.
198. See generally Ron Haskins & Isabel V. Sawhill, The Decline of the American Family: Can
Anything be Done to Stop the Damage?, 667 A
NNALS AM. ACAD. POL. & SOC. SCI. 8, 12 (2016).
199. Margaret F. Brinig, Adultery: Trust and Children, 95 T
EX. L. REV. 611, 624 (2017) (reviewing
D
EBORAH L. RHODE, ADULTERY: INFIDELITY AND THE LAW (2016)).
Marriage, as opposed to cohabitation, can be characterized by its relative
permanence, its unconditional love, and its status as an institution (receiving of
public and private support). In addition to . . . the numerous statutory benefits
marriage grants, married couples gain the commitment to sexual monogamy and
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cohabitation is the very reason that vulnerable cohabitants result:
cohabitations are unstable.
200
Legislators may also want to defer to
certain cohabitants’ preferences not to be regulated.
201
Courts, meanwhile, have more cases regarding cohabitants each
year, but there are still not enough decisions to provide a
comprehensive legal framework on cohabitation.
202
In addition,
courts often use general principles of law in such cases instead of
addressing the narrow issues relating to cohabitation in particular,
which is not always satisfactory for building consistent law.
203
However, family policy is currently focused most on protecting the
traditional model of family, which remains married people and their
children.
204
This is seen most recently in Obergefell v. Hodges, which
encourages family formation through marriage.
205
As a result,
cohabitants must continue to wait for a more established legal
response to cohabitation.
permanence of marriage that, in turn, promotes trust. It is that trust that catalyzes
the many fruits of marriage because, in a word, it signifies the production of
social capital.
Id.
200. Haskins & Sawhill, supra note 198, at 12. “Nearly 40 percent of cohabiting couples who have a
baby are no longer together by the time the child reaches age five, about three times the breakup rate for
married couples over the same period.” Id.
201. Gregg Strauss, The Positive Right to Marry, 102 V
A. L. REV. 1691, 1696 (2016). “Cohabitants
do not need a basic right to legal status, because once couples can create legal duties through marriage,
they may choose to live together without undermining one another’s liberty.” Id.
202. See, e.g., Clare Huntington, Nonmarital Families and the Legal System’s Institutional Failures,
50
FAM. L.Q. 247, 247 (2016) (“For all its shortcomings, family law provides an institution to help
divorcing couples restructure their families following the end of relationships. For nonmarital families,
not so much. Unmarried parents theoretically can go to court when they separate, but most do not. Thus,
as a practical matter, the legal system leaves unmarried parents without an effective way to transition
from families based on romantic relationships to families based on co-parenting.”).
203. Martha A. McCarthy & Joanna L. Radbord, Family Law for Same Sex Couples: Chart(er)ing the
Course, 15 C
AN. J. FAM. L. 101, 167–68 (1998).
204. Huntington, supra note 202, at 257.
205. Obergefell v. Hodges, 135 S. Ct. 2584, 2600 (2015). The downside of public policy’s priority of
marriage is the lack of protections for vulnerable cohabitants. Melissa Murray, Essay, Obergefell v.
Hodges and Nonmarriage Inequality, 104 C
AL. L. REV. 1207, 1207 (2016) (“Obergefell builds the case
for equal access to marriage on the premise that marriage is the most profound, dignified, and
fundamental institution that individuals may enter. By comparison, alternatives to marriage, which I
collectively term ‘nonmarriage,’ are less profound, less dignified, and less valuable. On this account, the
rationale for marriage equality rests—perhaps ironically—on the fundamental inequality of other
relationships and kinship forms.”).
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CONCLUSION
This article analyzes the recent legal developments on cohabitation
based on a comparative analysis, focusing on the various protections
offered to cohabitants upon separation. Such developments have
remained few, with contract remaining the primary method of
protecting the vulnerable party leaving a cohabitation, even though
many cohabitants do not have a contract.
206
Thus, cohabitants must
continue relying on themselves for protection when it comes to the
property consequences at the end of their relationship.
206. Jeanne M. Hannah, The Law and Living Together, 7 L. TRENDS & NEWS: PRAC. AREA NEWSL.
47, 47 (2010).
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