Unmarried Property Rights

Georgia Recognizes Neither Common Law Marriages Nor Inheritance by Domestic Partners Based on Status but Has Recently Allowed Domestic Partners the Limited Ability to Acquire Property Rights via Contract. Even though common-law marriage had been recognized by the Georgia courts since the mid-nineteenth century, the Georgia legislature prospectively abolished common-law marriage in 1996. Although Georgia no longer recognizes new common-law marriages, a domestic partner can acquire property rights under contractual arrangements in certain situations. Contracts between domestic partners in Georgia are broadly governed by O.C.G.A. Section 13-8-1, which says, "A contract to do an immoral thing is void. If the contract is severable, however, the part of the contract which is legal will not be invalidated by the part of the contract which is illegal." The Georgia courts have a long history of using O.C.G.A.§ 13-8-1 to invalidate agreements made between unmarried cohabitants. In Wellmaker v. Roberts, the plaintiff and defendant agreed to pool their resources and purchase a lot and build a residence upon the lot. Esther Wellmaker provided $ 2,500 in capital, performed labor in constructing the house, and prepared meals for the workmen. However, after construction was finished, Roberts married another woman and refused to account for the contributions made by Wellmaker. On direct examination, Wellmaker testified that in connection with the agreement about the house, there was an agreement that she would live with Roberts without ceremonial marriage. Based on this testimony, the court held that "an agreement between her and the defendant to engage in illicit sexual relations formed a part of the contract relied upon by her as the basis for recovery [and that] the contract was void as being based upon an illegal and immoral consideration." Under Georgia jurisprudence, " Neither a court of law nor a court of equity will lend its aid to either party to a contract founded upon an illegal or immoral consideration.'" In Rehak v. Mathis the Supreme Court of Georgia considered an action in equity brought by a domestic partner after the break-up of an eighteen year relationship.

The plaintiff, Hazel Rehak, alleged that during the time she lived with defendant, Archie Mathis, she made a portion of the house payments and that she had performed household duties. In denying Rehak's claim for monthly support and title to the couple's house, the court said, "It is well settled that neither a court of law nor a court of equity will lend its aid to either party to a contract founded upon an illegal or immoral consideration." The court said that the mere fact that the plaintiff admitted the fact of cohabitation was enough to constitute immoral consideration. In his dissent Justice Hill said, "Courts normally do not deny judicial relief to sinners. If that were the rule, the caseload in all courts would be drastically reduced." Hill said that the majority failed to differentiate between a contract "founded upon" an illegal consideration and a situation where illegal conduct is incidental to a contract. Eight years later the Court of Appeals of Georgia decided Liles v. Still, a case where the plaintiff alleged that she and the defendant had entered into a lease agreement for an apartment whereby the [*708] defendant would pay one-half of the lease and utilities. The defendant made no payments, and the plaintiff sought to enforce the contract. At trial, the jury found for the defendant, and the plaintiff alleged that the following jury instruction was given in error: "The law will not enforce a contract founded upon an immoral consideration. Unmarried cohabitation would constitute immoral consideration." The Court of Appeals upheld the jury instruction The court first noted that O.C.G.A. § 13-8-1 is not applicable " where the object of the contract is not illegal or against public policy, but where the illegality [or immorality] is only collateral or remotely related to the contract.'" While the court made it clear that in theory it would be possible for unmarried cohabitants to agree to a contract where the consideration given would be severable from meretricious relations, the court found that the evidence in this case did not merit enforcement of the contract. Since there was some evidence of a preexisting agreement to form a meretricious relationship, "the subsequent specific agreement regarding the expenses necessary to the very establishment of that agreed-upon relationship would not be merely collateral thereto." In Samples v. Monroe the Court of Appeals of Georgia reiterated the difficulty in establishing that legal consideration for a contract between unmarried cohabitants can be severed from illegal consideration.

Samples cohabitated with Monroe for fourteen years and alleged that she provided him with a residence, food, and utilities and paid all the necessary living expenses based on promises by [*709] Monroe that he would save his earnings for their mutual benefit. Samples acknowledged "that sex had always been part of her relationship with defendant . . . and that defendant probably would not have moved in with her had she indicated to him that she wasn't going to give him any sex." The court found that Sample's arrangement with Monroe "envisioned a meretricious relationship rather than a simple agreement to share living expenses." The Supreme Court of Georgia began to change course in 1992 with its decision in Crooke v. Gilden. There, the court upheld a written integrated contract for the mutual improvement of real estate and the sharing of expenses in spite of one party's contention that parol evidence would show "an illegal and immoral relationship between the parties." According to the court, nothing in the contract cast upon either party the responsibility to perform an illegal activity, and at most the parol evidence would show that the illegal activity was only incidental to the contract. In 2001 the Court of Appeals of Georgia upheld a jury award based on an unjust enrichment claim of an unmarried cohabitant. In Phillips v. Blankenship, Blankenship argued that she had unjustly enriched Phillips by performing commercial computer services, increasing the value of his real property, and paying off all of his debts. Phillips claimed that the unjust enrichment claim was barred because Blankenship illegally cohabited with him during the two years she claimed he became unjustly enriched. According to the court, if the consideration for the unjust enrichment claim were based on sexual relations, then the claim would fail. However, none of the three alternative grounds for recovery involved illegal acts. The court said that "whether the [*710] parties' agreement arose directly from their meretricious relationship or was founded on consideration other than their illegal cohabitation was a jury question" and that there was "sufficient evidence to create a jury question on the issue." In 2003 the court of appeals rendered a decision that should greatly aid Georgia's unmarried cohabitants in validly arranging their affairs via contract. There, Doreen Massell and Bernard Abrams cohabited for approximately six years. While they were cohabiting, they "executed a written contract to make a will." Each party agreed that they would not change "the bequest and devise to the other party reflected in" their respective codicils "without the prior written consent of the other party." Abrams's codicil provided that he would " bequeath the sum of Four Hundred Thousand Dollars ($ 400,000.00) to [his] friend, Doreen Massell, if she survives [him].'" Massell's first codicil said that she would leave Abrams " any interest [she] may own in [her residence] . . . provided he survives [her] by ten (10) days.'" Almost two years after executing their contract, Abrams left to visit his brother and never returned. Abrams then changed his will without Massell's permission Massell initially sued Abrams claiming anticipatory breach of contract, but after Abrams's death, she amended her complaint to substitute Abrams's executors and to allege that Abrams had breached their contract. After the superior court denied the plaintiff's and defendants' motions for summary judgment, each party appealed.

Massell argued that "the trial court erred in refusing to enforce the contract on the ground that an issue of fact remained as to whether the contract was void" because it furthered an immoral purpose. The [*711] executors argued that the lower court erred in determining that it was a jury question whether or not the contract was in furtherance of an immoral relationship, which would render the contract void ab initio. The defendants cited Rehak and O.C.G.A .§13-8-1 as supporting the proposition that a "meretricious relationship" renders a contract supported by such consideration void in the state of Georgia. The court first noted that fornication was no longer illegal in Georgia after the Supreme Court of Georgia's decision. In re J.M., where the court held that O.C.G.A. § 16-6-18 violated the Georgia Constitution However, the court continued by noting that "as long as binding precedent from the Supreme Court of Georgia continues to define sexual relationships between unmarried consenting adults as immoral . . . [this court] must set aside contracts under O.C.G.A § 13-8-1 that are founded upon or that are in furtherance of such relationships." Therefore, the court had to decide whether there was any consideration severable from the couple's meretricious relationship. The court ruled that the contract neither required the parties to perform any illegal or immoral act nor was founded upon such consideration. The court wrote that "although the contract provided that the parties shall maintain a joint residence, it did not describe their relationship as romantic or sexual, require that they share a bedroom, or require that they live together as husband and wife." The court said that the facts of this case were distinguishable from the facts in Rehak because the contract in that case "provided for services that could [have] been construed as fornication, which was at the time illegal, thus implying the existence of a meretricious relationship." In contrast, the contract in this case described [*712] the parties as "friends" who intended to provide each other with a "comfortable home with shared expenses" and "support during life" . . . [and] specifically provided that the "agreement contained the entire understanding of the parties with respect to their rights to the property and the estate of the other and no representations or promises in the premises had been made by either except as stated or contained [there] in." The court continued by holding that "at most, the existence of any romantic or sexual involvement between the parties was, as a matter of law, incidental to the contract rather than required by it.'" Since " nothing in the contract casts upon either of the parties the responsibility to perform any illegal activity,'" the court refused to allow the defendants to submit any parol evidence that would "vary or supplement the consideration stated in [the] integrated contract." In conclusion, the Court of Appeals of Georgia held that enforcement of the contract would not contravene O.C.G.A §13-8-1 and that "the trial court erred in holding that a jury issue remained with respect to this issue."