Cohabitation Agreements - Same Sex

   Florida courts will recognize properly written cohabitation agreements.  There is a line of court cases where the courts have enforced these agreements.  A key point to contracts for same sex cohabitation agreements is the contractual purpose of the document - the center purpose cannot be to enforce a sexual arrangement.  Also, sex cannot be offered in trade for a financial arrangement.  The Florida courts have ruled these types of agreements are void because they are against public policy.

  The key to a cohabitation agreement is to structure it like a classic contract.  A classic, enforceable contract revolves around a trade of services or items of value.  For example, I will clean the house while we live together if you agree to share your income.  Or I will purchase items for the house if you purchase items.  As long as the purpose of the contract is to form a "partnership" for the purpose of sharing expenses, responsibility, and/or work, the contract is enforceable. 

Here is an example case where the courts analyzed a cohabitation agreement:

 

SANDRA EATON, Appellant, v. PETER A. GURRY, Appellee.

CASE No. 93-00933

COURT OF APPEAL OF FLORIDA, SECOND DISTRICT

627 So. 2d 1317; 1993 Fla. App. LEXIS 12163; 18 Fla. L. Weekly D 2633

 

December 10, 1993, Filed

SUBSEQUENT HISTORY:  [**1]

Released for Publication January 12, 1994.

PRIOR HISTORY: Appeal from the Circuit Court for Lee County; William C. McIver, Judge.

CASE SUMMARY:

PROCEDURAL POSTURE: Appellant challenged the order of the Circuit Court for Lee County (Florida) denying her claim for the reasonable value of her work performed at a restaurant and bar owned by her former live-in partner.

OVERVIEW: Appellant worked as a cook, bartender, waitress, janitor, and sometimes manager of a restaurant and bar owned by appellee. Appellant and appellee lived together but were not married during the time she worked at the restaurant and bar. After a non-jury trial, the trial court determined that the relationship between appellant and appellee was "meretricious" and denied recovery. Thereafter, appellant sought review. The appeals court reversed and remanded for further consideration. The court ruled that the trial court erred by denying compensation solely because the parties were living together at the time the services were rendered. Instead, the court ruled that a constructive trust was available as a remedy for a party seeking to recover contributions made during a non-marital relationship.

OUTCOME: The appeals court reversed and remanded for further consideration, because the trial court erred by denying compensation solely because the parties were living together at the time the services were rendered.

JUDGES: BLUE, CAMPBELL, THREADGILL

OPINIONBY: BLUE

OPINION:  [*1318]  BLUE, Judge.

Sandra Eaton appeals the denial of her claim for the reasonable value of her work as cook, bartender, waitress, janitor, and sometimes manager of the Porthole, a restaurant and bar owned by Peter Gurry. Eaton and Gurry lived together but were not married during the time she worked at the Porthole. After a non-jury trial, the court determined that the relationship between Eaton and Gurry was "meretricious" and denied recovery. We hold that the court erred by denying compensation solely because the parties were living together at the time the services were rendered.

In reaching its decision, the trial court relied on Botsikas v. Yarmark, 172 So. 2d 277 (Fla. 3d DCA), cert. dismissed, 179 So. 2d 211 (Fla. 1965), which states, "Compensation for services rendered by the appellant during the existence [**2]  of the meretricious relationship of course would not be recoverable." 172 So. 2d at 279. A careful reading of Botsikas leads us to conclude the quoted statement is dicta, in light of its holding that [HN1] a constructive trust is available as a remedy for a party seeking to recover contributions made during a non-marital relationship. See also Evans v. Wall, 542 So. 2d 1055 (Fla. 3d DCA 1989) (citing Botsikas to support a constructive trust between cohabitating parties as long as the consideration was not related to any agreement regarding sexual relations).

Although this court has not previously decided this issue, we are persu aded that the Fourth District has correctly stated the law.  Poe v. Estate of Levy, 411 So. 2d 253 (Fla. 4th DCA 1982) (allowing a cause of action based on services rendered between unmarried cohabitants); Stevens v. Muse, 562 So. 2d 852 (Fla. 4th DCA 1990) (holding agreements between unmarried cohabitants were not violative of public policy).

Eaton does not appeal, and we do not address, the court's ruling that she waived her claim for [**3]  services prior to October 3, 1988. We hold only that the trial court erred in denying claims arising after that date when the denial was based on her relationship with Gurry. Accordingly, we reverse and remand for further consideration in conformance with this opinion.

CAMPBELL, A.C.J., and THREADGILL, J., Concur.

 

I hope this article was of help to you.  If you think a cohabitation agreement will help you in your situation, please consider speaking to us first. Gay and Lesbian couples are welcome.  I can be reached toll free at 1-888-469-3486.

Divorce Attorney Howard Iken

    

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