Sometimes an important question which arises with cohabitation contracts is if they should take over the secular or functional equivalent of a traditional marriage to separate the issues involved in marriage. This is because a cohabitation contract often has all of the necessary elements of the traditional legal formulation of marriage which involves a a set of rights and obligations which are enforceable. Sometimes, however, courts have equivocated on the question of whether a cohabitation contract should be allowed as a basis for dividing property, assets, the calculation of child support payments, alimony and other elements. There are now a number of states in the United States which assign the same rights and obligations to relationships codified in a cohabitation contract as are assigned in a divorce.
There is also the question of whether the cohabition contract is considered a contract in the sense that a business contract might be. There are some cases which indicate that such a contract is completely legitimate. A well known one is the case of Marvin v Marvin which was a 1964 California case that legitimised cohabitation arrangements by granting legal remedies to the persons in the couple. The case involved a famous actor and his girlfriend, Michelle. Michelle changed her last name to Marvin and lived with Mr Marvin for approximately 7 years. Both parties made contributions to the relationship. Eventually when the case was heard in the Supreme Court of California it was found that Michelle Marvin had a cohabitation contract with Mr Marvin and that she therefore had an action in breach of contract against Mr Marvin and therefore a constructive trust over half the marital property.
The same case also indicates that there are equitable remedies which are available when a person enters into a cohabitation contract. Eventually the case went on appeal to the Superior Court of California which held that the monetary award was incorrectly determined which meant that the woman that began this case was eventually left with nothing but in the process California had essentially accepted that legal rights can exist between parties to a contract for cohabitation. In other words, so long as there was not a contract for ‘sexual services’ or prostitution involved, a couple could live together informally and set their own terms for a relationship and the state would recognise this relationship.
Other states soon followed the legal principle that was developed in California and similar cases emerged in Massacheusetts immediately after the Marvin case controversy became widely known amongst lawyers and others. For this reason it can be seen that it is certainly possible that a cohabitation contract can achieve the objective of creating a legally enforceable contract between the parties to a relationship.