Family Law

LEG 400

Legal Recognition of Non-marital Families

CHAPTER 2: PART 2 WEEK ONE 1

Objectives
When you complete this lesson, you will be able to:

Define the various forms of non-marital families recognized by the law Summarize the concepts, theories, and legal issues associated with cohabitating couples Summarize the concept and legal issues associated with domestic partners Summarize the concept and legal issues associated with applying the functional family approach Summarize the concept and legal issues associated with adult adoption
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Cohabitation
Not a formally recognized status

Cohabitation Agreements
Contracts between two unmarried parties (who intend to remain unmarried) covering financial and related matters while they live together, upon separation, or upon death

Purpose of the Cohabitation Agreement

Protects the interests of both parties Spells out their obligations to each other

Breached Agreements
When an aggrieved party cannot establish the existence of an express or implied cohabitation contract, the court uses theories to avoid unfairness

Contents of Cohabitation Agreements

Directions for distribution of property (what and to whom) if one or both of the partners die Provisions for support Provisions that neither partner has the obligation to support the other (if that is the case) and that all expenses are shared equally Identification of the expenses for which each partner is responsible Identification of the debts for which each partner is responsible
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The Marvin Decision

The provisions of the Family Law Act do not govern the distribution of property acquired during a nonmarital relationship; such a relationship remains subject solely to judicial decision. The courts should enforce express contracts between nonmarital partners except to the extent that the contract is explicitly founded on the consideration of meretricious sexual services.
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Contract Theories
Express and implied contracts
Based on the actual intent of the parties as expressed in language or conduct

Trust Theories
The distribution of property by some courts is based on trust theories Implied trust is known as a resulting trust Imposed trust is known as a constructive trust

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Resulting Trust
A resulting trust occurs when one partner supplies all or part of the purchase price for property but the title of the property is taken in the name of the other partner

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Constructive Trust
A constructive trust is unrelated to the intent of the parties and is imposed to prevent unjust enrichment
Used to effectuate a division of property where one partner has acquired property or funds from the other fraud

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Domestic Partnership Initiatives

They are cohabiting Their relationship is exclusive and that neither person is married or has another domestic partner That they are responsible for one anothers welfare and share basic living expenses That they are not related such that a marriage between them would violate state incest provisions That neither has within the past six months filed a statement of domestic partnership with anyone else That if they end the relationship, they will file a certificate or dissolution
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Functional Family Approach

Braschi vs. Stahl Associates Company
The longevity and exclusivity of the relationship The extent of the couples emotional and financial commitment The manner in which the partners have conducted themselves in their daily lives and presented themselves to the world

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The Braschi Court

No one factor is dispositive The relationship should be examined as a whole with an emphasis on the dedication, caring, and self-sacrifice of parties involved

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Adult Adoption
Same-sex couples have considered adult adoption as a means to formalize their relationship Parent child relationship Family benefits

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Summary
Cohabitation agreements The Marvin Decision Contract theories Trust theories Domestic Partnership Initiatives The Functional family Braschi decision Adult adoptions
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