seathesee wrote: ↑Wed Aug 10, 2022 9:02 pm
Rylinks wrote: ↑Wed Aug 10, 2022 8:51 pm
there are principles specific to marriage that the government could hypothetically drop--absent a marriage the government is not going to say that a salary paid to an individual is a product of the boyfriend/girlfriend relationship and subject to division.
not necessarily. like i discussed above, there is common law marriage or the toned down "committed intimate relationship" in washington law. these are creatures of common law, not statute. there is also the possibility of marriage like relationships constituting a business partnership of sorts, and certain courts finding property acquired during the relationship subject to division in the same manner property owned by a disbanding partnership is.
were this hypothetical event to take the form of the legislature passing a law specifically prohibiting common law, marriage, comitted intimate relationships, etc., i dont think property accumulated prior to the ban/event would lose its characterization as community property or property acquired during a marriage subject to judicial division--that seems inequitable, contrary to reasonable expectation, and likely to cause people to engage in self help, all of which runs counter the purpose of law at large.
common law marriage has been abolished by most states. Even where it still exists, it requires intent to be married or holding oneself out to the public as married, and so does not apply to most long-term relationships
in addition, NY courts have said that implied contracts are disfavored, and i suspect the same would apply to implied business partnerships.
Historically, we have required the explicit and structured understanding of an express contract and have declined to recognize a contract which is implied from the rendition and acceptance of services. The major difficulty with implying a contract from the rendition of services for one another by persons living together is that it is not reasonable to infer an agreement to pay for the services rendered when the relationship of the parties makes it natural that the services were rendered gratuitously. As a matter of human experience personal services will frequently be rendered by two people living together because they value each other's company or because they find it a convenient or rewarding thing to do. For courts to attempt through hindsight to sort out the intentions of the parties and affix jural significance to conduct carried out within an essentially private and generally noncontractual relationship runs too great a risk of error. Absent an express agreement, there is no frame of reference against which to compare the testimony presented and the character of the evidence that can be presented becomes more evanescent. There is, therefore, substantially greater risk of emotion-laden afterthought, not to mention fraud, in attempting to ascertain by implication what services, if any, were rendered gratuitously and what compensation, if any, the parties intended to be paid.
Similar considerations were involved in the Legislature's abolition by chapter 606 of the Laws of 1933 of common-law marriages in our State. Writing in support of that bill, Surrogate Foley informed Governor Lehman that it was the unanimous opinion of the members of the Commission to Investigate Defects in the Law of Estates that the concept of common-law marriage should be abolished because attempts to collect funds from decedents' estates were a fruitful source of litigation. Senate Minority Leader Fearon, who had introduced the bill, also informed the Governor that its purpose was to prevent fraudulent claims against estates and recommended its approval. The consensus was that while the doctrine of common-law marriage could work substantial justice in certain cases, there was no built-in method for distinguishing between valid and specious claims and, thus, that the doctrine served the State poorly.
The notion of an implied contract between an unmarried couple living together is, thus, contrary to both New York decisional law and the implication arising from our Legislature's abolition of common-law marriage. The same conclusion has been reached by a significant number of States other than our own which have refused to allow recovery in implied contract. Until the Legislature determines otherwise, therefore, we decline to recognize an action based upon an implied contract for personal services between unmarried persons living together.
an express contract is a different story, of course. There aren't zero principles that protect unmarried couples, but a legislature refusing to recognize marriage and disestablishing marital property law would be a drastic change, and in the absence of an express contract there would be no parallel to the concept of marital property as it currently exists.
i agree on property acquired prior to the ban. I am thinking of marriages after the change, where two people go to a church or whatever and someone says "I now pronounce you man and wife", but the government has decided that this religious ceremony is not recognized by the law.