Unmarried couples and their legal rights after separation

Ever since the concept of marriage became so darn popular, we have elevated it to a special status. Our laws, our customs and our religions treat the marital relationship differently than other relationships, affording it a privileged status.

Ownership of property is one area in which the law recognizes the uniqueness of marriage. A husband and wife may own real property, a house for instance, or personal property, such as a car, or stocks and bonds, in a manner different from any other joint ownership of property.

For example, if you and your spouse buy a house and take title to the property in both names, the law gives you greater protection against creditors than if you and I bought that same piece of property and owned it as partners. Not bad, huh?

While the vast majority of us have opted, at least once or twice, to marry our “life” partner, there are some who have chosen a different path — a life with partner outside of marriage.

A few weeks ago, I talked about how property owned by a husband and wife is divided in the event of divorce. What happens to property in the event that an unmarried couple ends their relationship on a less than cordial note?

Wyoming does not recognize common-law marriage. A common-law marriage is a relationship between a man and a woman who never step up to the plate and say “I do” in the presence of a preacher, but who live together and present themselves to the world as husband and wife. Common-law marriage does not count in Wyoming.

For many years the law in Wyoming has been that a person who cohabits (lives together) with another person cannot sue the other person for services rendered during the relationship, if the claim is based solely on the fact that the parties lived together.

For example, let’s say a man and woman live together in a traditional relationship, except that they never formally marry. Let’s say the couple never talked about buying property together, or never discussed any kind of arrangement where the woman takes care of the house and does the things that women have traditionally done in a marriage, and in return the man takes care of the woman financially for life. Let’s say that the couple never discussed what would happen in the event they split up.

Let’s also say that this is no ordinary woman. This woman has won the World Series of cleaning, cooking, and caressing for seven of the 10 years the couple has lived together. Then the relationship ends. The woman sues the man for the value of all the household and other services she provided during their time together.

What happens? Since there was no agreement or bargain or understanding — no contract between the parties — the court will not enforce the woman’s claim for services. Her fond memories will have to do.

But wait. Let’s vary the scene a bit. Dick owns a successful business. He offers Jane a job. Jane works for Dick for five years. Dick wants to expand their relationship: He wants them to become equal partners in both business and life. Jane and Dick begin sharing a bedroom. Jane takes on the primary role in raising Dick’s two children, in addition to her responsibilities. Dick continually says to Jane, “Don’t worry, Jane, I will take care of you. Trust me.’

Five blissful years pass. Dick has been generous to Jane, but she has concerns about her financial security. Dick’s assets are in a living trust. Dick amends the living trust to provide that in the event of his death Jane will receive a portion of the trust income; if Dick outlives his kids, then Jane gets 75% of his estate. Four more blissful years pass. Then the relationship unravels. Although it is Dick who has left emotionally, it is Jane who is shown the door.

So what do you think? In 1943, the Wyoming Supreme Court said that, “Wyoming does not recognize common-law marriage. In this state, living arrangements between a man and woman must be formalized by the state before the traditional protections of the marriage relationship can be invoked…”

In 1981, the Wyoming Supreme Court stated in an opinion that, “While repeatedly rejecting the doctrine of common-law marriage, this court has never held, however, that the fact that a man and woman live together out of wedlock and engage in a sexual relationship, renders them incapable of contracting with one another.”

In 1998, the Wyoming Supreme Court, in a case from Teton County, said, “It is well settled that a cohabiting couple can enter into binding contracts as long as the agreement complies with Wyoming law… Whether a contract has been formed, the exact terms of the contract, and whether there was a breach of those terms are questions (to be decided by the judge hearing the case).”

What does this mean? It means that the Judge who is presiding over the case of Jane v. Dick must determine whether Jane and Dick actually agreed that Dick would provide financial security for Jane in exchange for Jane’s efforts in managing the home, raising his children, and assisting in business endeavors. If Jane can prove it is more likely than not that she and Dick had such an agreement, then the Judge may enforce the agreement and require Dick to keep Jane in his living trust, if not in his heart.