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Cohabitation Agreements: The Wave of the Future?

With more and more unmarried couples cohabiting these days (regardless of whether they have plans to eventually “tie the knot”), cohabitation agreements are becoming more popular. A cohabitation agreement specifically allows cohabitants to legally define their rights and obligations toward each other.  Cohabitation agreements can be very useful when one of the cohabitating parties dies or if the cohabitants decide to end their relationship.  They can also be very useful in governing the affairs of the cohabitants while living together, such as defining what the household expenses are or will be and the amounts each party will contribute to the household expenses.  Additionally, cohabitation agreements can define how the parties will treat ownership of jointly owned or acquired property while the parties are cohabiting together.

So how does the State of Texas enforce these cohabitation agreements? The answer to this question requires an examination of the authority under which such agreements can be made.  Section 1.108 of the Texas Family Code indicates that parties can enter into agreements made in consideration of nonmarital conjugal cohabitation.  The statute specifically sets forth all that is required for the cohabitation agreement to be enforceable: “A promise or agreement made on consideration of marriage or nonmarital conjugal cohabitation is not enforceable unless the promise or agreement or a memorandum of the promise or agreement is in writing and signed by the person obligated by the promise or agreement” (emphasis added).  In other words, all that is required for a cohabitation agreement to be enforceable is a writing signed by the person(s) obligated by the agreement and made in consideration of nonmarital cohabitation.

Regarding the signed writing requirement, at least one court has held that an oral agreement is simply not enforceable, even with consideration of nonmarital cohabitation. In Zaremba v. Cilburn, the Texas Court of Appeals found that an oral agreement that one male cohabitant would do the household chores in exchange for a share of the other male cohabitant’s income was in violation of the statute of frauds and unenforceable. Zaremba v. Cilburn, 949 S.W.2d 822, 826-27 (Tex.App.—Fort Worth 1997, writ denied).  This case is interesting since it was decided at a time when same-sex marriage was prohibited in the State of Texas.  One has to wonder whether the party arguing in favor of the existence of a cohabitation agreement in that case would have tried to make such a stretch after the United States Supreme Court ruling of Obergefell v. Hodges, which struck down bans on same-sex marriage as unconstitutional.  The reason one has to wonder is because cohabitation agreements were one of the only ways (if not the only way) for same-sex couples in the State of Texas to legally define their rights and duties to each other prior to the Obergefell v. Hodges decision.

With respect to the consideration requirement for a cohabitation agreement to be enforceable, the cohabitation agreement should specifically set out in writing what that consideration is, although the consideration itself is not actually required to be set out in writing to be enforceable. In O’Farrill Avila v. González, the Texas Court of Appeals held that extrinsic evidence can be used to establish the exchange of consideration.  In that case, the Court found that the female cohabitant’s promise to stay in San Antonio and raise the couple’s child in exchange for the male cohabitant’s agreement to make monthly payments was enforceable consideration even though the female cohabitant’s promise was not set forth in the agreement.  The Court, therefore, found that extrinsic evidence could be used to prove that the cohabitants exchanged mutual promises sufficient to establish the requisite consideration for a cohabitation agreement. See O’Farrill Avilla v. González, 974 S.W.2d 237, 243-44 (Tex.App.—San Antonio 1998, pet. denied).

If you are considering moving in together with a loved one, then you should strongly consider entering into a cohabitation agreement in an effort to eliminate uncertainty regarding your rights and duties to each other in the relationship and to also provide a measure of security in the event the relationship terminates. For more information about what you can do to protect yourself and your living situation, please call 214-692-8200 to consult with an experienced attorney at McClure Law Group, PC.