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What does "Cohabitation" mean?
Cohabitation simply means living together. In the domestic relations context, it implies the existence of a romantic relationship and a long-term or permanent residence together.
Kentucky law uses the Black’s Law Dictionary to define cohabitation. Black’s Law 5th Edition defines cohabitation as:
“To live together as husband and wife. The mutual assumption of those marital rights, duties, and obligations which are usually manifested by married people, including but not necessarily dependent on sexual relations.”
Common Questions for Cohabitating Couples
Unmarried Cohabitation Is Increasing in the US
More unmarried couples are living together today and for longer periods of time. And fewer relationships are moving towards marriage after cohabitating than in the past.
Unmarried cohabitation is very common in the United States today as compared to past generations. According to both the U.S. Census and PEW Research Organization more people have at one time lived unmarried with a partner than married.
According to the 2019 PEW study, the number of U.S. adults who are currently married has declined modestly in recent decades, from 58% in 1995 to 53% in 2019. Over the same period, the share of adults who are living with an unmarried partner has risen from 3% to 7%. While the share who are currently cohabiting remains far smaller than the share who are married, the share of adults ages 18 to 44 who have ever lived with an unmarried partner (59%) has surpassed the share who has ever been married (50%), according to a Pew Research Center analysis of the National Survey of Family Growth (NSFG). And the survey results regarding the acceptance of unmarried cohabitation among young adults suggest these numbers will only continue to increase.
According to a University of Michigan study, this government data traces the decline of marriage and the rise of cohabitation in the United States. Between 2000 and 2010, the population grew by 9.71%, but the husband and wife households only grew by 3.7%, while the unmarried couple households grew by 41.4%
Why Do People Cohabitate Rather Than Getting Married?
There are many reasons why two individuals in a romantic relationship may choose to live together without being married:
- It’s an opportunity to “test” a relationship and compatibility with a partner before further commitment is made
- As a transitional step prior to getting married
- A way to save money by reducing individual housing expenses
- It allows the parties to spend more time with one another
- It avoids all marital property laws (i.e. property division and maintenance), which may be especially attractive to a person with more income or property than their partner
- Either or both parties may simply not believe in marriage or wish to ever be married
- The parties cannot legally be married due to existing prior marriage, non-citizenship, etc.
Same-Sex Marriages No Longer Prohibited
It is important to note, that same-sex relationship was not listed as a reason not to marry. This is due to the Supreme Court of the United States (SCOTUS) ruling in Obergefell v. Hodges, 135 S. Ct. 2584, 99 Empl. Prac. Dec. (CCH) ¶ 45341, 2015-1 U.S. Tax Cas. (CCH) ¶ 50357, 115 A.F.T.R.2d 2015–2309 (2015) which ruled same-sex marriages are universally legal across all 50 states. This 2015 ruling changed the landscape for same-sex couples who faced these challenges due to an inability to get married in the State of Kentucky until 2015.
Do Unmarried Couples Living Together Have the Same Rights As Married Couples?
No. Generally, an unmarried couple living together does not enjoy the same rights and protections as married couples regarding property or inheritance. Kentucky appellate cases have insisted that the rights of unmarried cohabitants cannot be the same as those of married parties. Sousley v. Sousley, 614 S.W.2d 942 (Ky. 1981); Murphy v. Bowen, 756 S.W.2d 149 (Ky. Ct. App. 1988).
The legal difference between married and unmarried cohabitation is most noticeable when the relationship ends, either through death or termination. But there are also legal differences that exist during the relationship. Such as:
- PROPERTY: A marriage partner must consent to the transfer of real property during the marriage by waiving dower rights even if the property is held in only one party's name. In contrast, a member of an unmarried couple may convey real property held in his or her own name without the partner's consent.
- SUPPORT: While a marital relationship continues, spouses owe each other a duty of support, but the law does not impose a reciprocal support duty on unmarried cohabitants.
- BENEFITS: Unmarried cohabitants may not qualify for spousal benefits such as health insurance.
Family law statutes protect each partner's rights to property acquired during the marriage. Where the characterization of property acquired by unmarried cohabitants is less clear and ownership of property is governed by whose name the property is listed under, contract and partnership laws.
Inheritance laws give married spouses specific rights to inherit on their spouse's death, which do not apply to unmarried couples. Without specific estate planning, even a long-term unmarried partner does not have any enforceable rights upon the death of the other.
Common Law Marriages
What is a “Common Law” Marriage?
A Common law marriage is when two people hold themselves out to the community as married, without undergoing the formal state-sanctioned marriage proceeding.
Pursuant to KRS 402 to get married in the State of Kentucky, two persons must:
- Be legally capable of contracting to marry
- Mutual consent to marry
- Actual contracting in the form prescribed by law
- Solemnized by an officiant
- License purchased and completed within 30 days
- Signed by 2 witnesses
Does “Common Law Marriage” Exist in Kentucky?
Kentucky does not recognize “common law” marriages contracted within the state. Pendleton v. Pendleton, 531 S.W.2d 507, 509-510 (Ky. 1976).
With This Exception
Kentucky does recognize common law marriages that are valid in other states. Glidewell v. Glidewell, 790 S.W.2d 925 (Ky. Ct. App. 1990). This means if another state that allows common law marriages, recognizes that two people are married, THEN Kentucky will honor that marriage, even if it is under common law.
To prove a valid common law marriage entered into in another state, the parties must demonstrate that the law of the state in which the marriage was contracted permits common law marriage, and that the requirements of the law have been met in their case.
POTENTIAL ISSUES FOR COHABITATING COUPLES
Legal Marriage v. Unmarried Cohabitation
In Kentucky, like in most other states, family or domestic relations laws are focused on the marital relationship and what happens when it ends. The Kentucky Courts make it clear that domestic relation laws only apply to married couples, stating “[i]f a legally valid civil marriage existed, the parties would be subject to the rights and obligations arising under our dissolution laws; but if not, the parties would not.” Pinkhasov v. Petocz, 331 S.W.3d 285 (Ky.Ct.App. 2011).
This means that when a relationship between an unmarried couple ends, the divorce provisions dividing property and maintenance do not apply. Which makes dividing property acquired during the relationship more difficult. Partners are at risk of losing property they contributed to because it is titled in the other's name. Unmarried partners that are separating or often required to look to contract or partnership laws to attempt to protect jointly owned property because divorce statutes don’t apply. Which can result in unfair divisions of property and high legal fees.
In the Case of a "Break-Up"
Unmarried Cohabitation and Child Custody, Visitation, and Child Support
Laws regarding custody, timesharing, and child support still apply whether a couple is married or unmarried.
This is largely due to the fact that these statutes focus on the child and the child’s best interest rather than the status of the parents.
One added complication is that if a couple is unmarried, the paternity of a child is not automatic. Whenever a married couple has a child in the State of Kentucky, that child is automatically treated as if the child of the married couple.
If a couple is unmarried, then one of the parents must petition for a court order regarding the paternity of the child.
Unmarried Cohabitation and Property Division
One of the major benefits of marriage comes into play surprisingly upon the end of the marriage. In a divorce proceeding, each side has protections in place regarding the division of property. When a married couple separates, the divorce statutes require that marital property and debts be divided in “just proportions.” Unwed cohabitants do not have similar rights
Kentucky courts have made it clear that divorce statutes do not apply to unmarried couples, even ones that have been in long-standing, committed relationships. If unwed cohabitants split up, their property rights depend primarily upon individual agreements made between them, and also on the way that the parties handled their property during the relationship.
Unmarried Cohabitation and Maintenance
Following a divorce, one side may be entitled to receive maintenance (also known as alimony) from the other. There is no right to continued support at the end of an unmarried relationship, regardless of financial disparity or length of the relationship.
The absence of property rights tied to the relationship means that unwed cohabitators can be at serious financial risk if they enter into a relationship expecting it to be the source of financial security. A person who lives in an unmarried relationship and serves as a homemaker is at significant risk because nonmonetary contributions do not automatically give rise to property claims, and may be presumed to have been gratuitously bestowed on the other cohabitant. If the relationship ends, the homemaker partner does not automatically have rights similar to a homemaker spouse in a divorce.
If You or Your Partner Die
Unmarried Cohabitation and Estate Planning and Probate
Kentucky law has very clear rules about who inherits your property if you die. If you are married, your surviving spouse has certain rights and these rights can be enforced regardless of the existence of a Last Will and Testament, or the contents of a Will.
In contrast, unmarried cohabitants do not have the right to spousal allowances, forced shares, or preference as an estate administrator. There are no special rules to protect the rights of the surviving partner of an unmarried couple. This could result in undesirable results, particularly for a couple who have been together for a significant period of time or own significant property together.
Unmarried couples do not have the same rights to make medical and end-of-life decisions for their partner either. Which makes estate planning even more important for unmarried couples.
It is critical that unmarried couples engage in estate planning with a skilled attorney that includes drafting their wills (to address property and other issues), living wills (to address end-of-life decisions), and powers of attorney (to address who will make health care decisions and financial decisions of an incapacitated partner).
Can We Establish Rights as a Couple?
Unmarried couples face many of the same issues at the end of their relationship as those affecting divorcing couples. However, living together in a non-marital relationship does not automatically entitle either party to acquire any rights in the property of the other party acquired during the period of cohabitation. In Kentucky, unmarried parties’ rights depend heavily on the presence of enforceable agreements between them.
Unmarried couples can address this issue by entering into a contract between themselves to secure rights similar to those afforded to married couples or otherwise determine a property division arrangement should the relationship end. This is known as a cohabitation agreement. When those agreements are not shown to exist, courts have been less charitable in providing recovery. Given the importance of agreements, persons contemplating cohabitation should plan their financial relationship carefully, often with the assistance of attorneys.
A cohabitation agreement may establish certain expectations between an unmarried couple during the relationship and spell out what would happen should the relationship dissolve. The agreement could address property division, ongoing support or maintenance, child custody, and/or inheritance.
Sometimes unmarried couples make oral or verbal agreements. This is not ideal. It is difficult to prove in court that an agreement that is not in writing should be enforced. Or what the specific terms of the agreement were. As such, verbal or oral agreements are not recommended. In practicality, just because someone says they will do something is not the same as them being required to do so.
The ideal situation is that unmarried couples enter into a written agreement, such as a cohabitation agreement, that lays out clearly their plans as to property and support obligations. A cohabitation agreement is very similar to the prenuptial agreement some couples sign prior to marrying.
While parties to a nonmarital cohabitation agreement cannot lawfully contract to pay for the performance of sexual services, they may agree to pool their earnings and hold all property acquired during the relationship separately, jointly, or to be governed by state property laws. They may also agree to pool only part of their earnings and property, form a partnership or joint venture, or joint enterprise, or to hold property as joint tenants or tenants in common, or agree to any other arrangement.
TAKE-AWAY FOR UNMARRIED COHABITATING COUPLES
More couples are living together and remaining unmarried each year. However, family and probate statutes do not provide protections to partners in an unmarried couple. It is important for unmarried partners to think critically about how they are acquiring property and would divide property in the event they separate. The best practice would be to meet with an attorney to create a formal cohabitation agreement since oral agreements are not easily enforceable. They should also meet with an estate planning attorney to discuss power of attorney and wills, in the event of a partner’s death or medical event.
If you have questions about cohabitating or would like to discuss a cohabitation agreement, contact us. We are here to help.