Mesa AZ | The Legal Downside to Unmarried Cohabitation:


Common Trend: In the last 40 years the number of couples that decide to cohabitate before marriage has drastically increased.  In the 1950’s cohabitation was considered both socially undesirable as viewed by the courts and shameful among those in society.  In the 1960’s and 1970’s, a sexual revolution took place where people of the opposite sex began living together out of mere convenience.   By 1978, the once shameful act of cohabitating had been accepted by the youth culture.  From 1970 to 2000 the number of unmarried cohabitating couples rose from 523,000 to 4,880,000.  The youth were not the only unmarried couples to cohabitate.  Older unmarried couples began cohabitating as well, as a result of either being hesitant to remarry after divorce, an interest in continuing spousal maintenance payments from a previous spouse or maintaining a survivor benefit that prevented them from remarrying.

Legal Implications: While society largely shapes the law, the law is often a bit behind in providing legal protection for those most in need.  Most states have done away with recognizing common law marriage, thus those who decide to cohabitate do not establish “community property” rights.  In Arizona, community property can be established through a marital relationship.  See A.R.S. § 25-211; Porter v. Porter, 67 Ariz. 273, 195 P.2d 132 (1948).   Thus, cohabitating couples are forced to seek remedies through contract law only, which is often a much more burdensome process than in family court.

A pivotal case in California established that cohabitating couples can establish implied or expressed contractual agreements and can seek relief when a party fails to fully perform.  See Marvin v. Marvin, 18 Cal. 3d 660, 134 Cal. Rptr 815, 557 P.2d 106 (1976).   The court in Marvin found that “homemaking” can support an implied agreement between the parties. Id.  Arizona decided long ago that monetary consideration is not the only adequate type of consideration. Cavanagh v. Kelly, 80 Ariz. 361, 363, 297 P.2d 1102, 1103 (1956).  Further, consideration need not be like or identical in value. Taylor v. Kingman Fedlspar Co., 41 Ariz. 376, 386, 18 P.2d 649, 651 (1933).  In a 1986 Arizona case, the court found an implied contract between an unmarried cohabitating couple.  Carroll v. Lee, 148 Ariz. 10, 712 P.2d 923 (Ariz. 1986). The implied contract was premised on the female staying home and being a homemaker while the male ran an auto service.  Id. The land the couple had acquired during the life of their relationship was to be partitioned, however the woman gained no interest in any of the proceeds or rights to the man’s auto service.

What You Need to Know: There are legal downsides to cohabitating before marriage if you intend to forgo certain opportunities for the benefit of your partner. The relief you can request in family court is not synonymous with the relief you can request in civil court.  The establishment of the “community” via marriage creates a presumption that certain assets and income obtained during the time in which the “community” exists are owned jointly by both parties.


This blog should be used for informational purposes only. It does not create an attorney-client relationship with any reader and should not be construed as legal advice. If you need legal advice regarding Mesa AZ|The Legal Downside to Unmarried Cohabitation, or other family law issues,  please feel free to contact our Family Law Section at  480.461.5300, log on to,  or contact an attorney in your area. Udall Shumway PLC is located in Mesa, Arizona and is a full service law firm. We assist Individuals, families, businesses, schools and municipalities in Mesa and the Phoenix/East Valley.