Couples have lived together as a precursor to marriage for many years. However, increasingly, couples are electing to live together without ever intending to get married or enter into a civil union. In the event that a couple decides to end their cohabitation relationship, one might think that living together without getting married would make the ending of the relationship simpler. To the contrary, the fact is that (unless the period of cohabitation was short, no children are involved and/or no assets or liabilities were acquired), cohabitation without the benefit of marriage or a civil union makes the break-up more complicated.
If a couple was married or entered into a civil union, there are legal statutes and cases which govern the break up of the relationship. If a couple never got married or entered into a civil union, however, there are no such laws to govern the break-up. Instead, the laws of “equity” govern the break-up. For example, if the cohabiting couple bought a house together, they would have to file an equity action known as a “partition” action. Other examples of equitable remedies include unjust enrichment, quasi-contract, equitable estoppel, the doctrine of quantum meruit, constructive trust and equitable interest. These actions are not exclusive to cohabitants dissolving their relationship; instead, they are equitable grounds which are available to Courts of Equity in any case in which legal doctrines are not available. Basically, they allow Courts of Equity to do what they deem to be “fair.”
Thus, the cohabiting couple is left with two choices: either reach an agreement between themselves as to how they want to divide their property and whether or not there is any support to be paid between the two of them, or apply to a Court of Equity to decide what is “fair.”
Couples are more frequently entering into Cohabitation Agreements which are the same thing as Prenuptial Agreements and Pre Civil Union Agreements but precede cohabitation rather than marriage or a civil union. All three types of agreements accomplish the same thing: in the event that the relationship ends somewhere down the road, they allow the couple to “pre-determine” how their break-up will be governed. This is always preferable to allowing a Court to decide how the break-up will be governed, whether the Court is making that decision according to the law (marriages and civil unions) or according to principles of equity (cohabitation).