May 7, 2010
The pre prenup
As states move slowly to adopt same-sex marriage, couples are turning to other legal mechanisms to govern their relationships. One such tool is the cohabitation agreement or “living together” contract — or more commonly known in the LGBT community as the pre-prenup. A cohabitation agreement is a legal agreement reached between an opposite- or same-sex couple who have chosen to live together cohabitate but are not married. Similar to a pre-nup, it establishes each party’s legal rights and responsibilities in the event of a break-up or death.
For much of American history, courts would not enforce cohabitation agreements because the law saw it as an assault on marriage: Judges did not want to encourage such behavior by allowing the parties the protection of the law. However, as the norms of society changed, so did the practice of cohabitation. For example, according to the U.S. Census Bureau, only 523,000 heterosexual couples were cohabitating unmarried in 1970. By 1995, the number of cohabitating couples grew to 3,668,000. Most courts now recognize cohabitation agreements by relying on contract law as opposed to family law. Contract law is concerned with keeping promises between contracting parties and tries to uphold the wishes of parties to a contract, so long as the parties intended to be bound and are contracting for a legal purpose. In contrast, family law is traditionally concerned with how the state maintains the idea of the nuclear family and its objectives concern how persons should marry, divorce and care for children. Since only a few jurisdictions recognize same-sex marriage, same-sex couples should fashion their agreements in terms of an ordinary exchange of contractual promises and avoid the use of family-law terms like alimony, support, guardianship of children, etc., to increase the likelihood that their cohabitation agreement is enforced.