Marvin Claim Defense

A Marvin claim defense is asserted against a party who has filed a complaint for a palimony action. In general, a Marvin claim defense is any defenses which are available to the parties of a contract. However, there are others such as, a claim of “meretricious” consideration, which are peculiarly applicable to Marvin claims.

Statute of Limitations

One Marvin claim defense is asserting that the statute of limitations has run: four years for written contracts [CCP 337(1)] and the two years for oral or implied contracts [CCP 339(1)]. [Kurokawa v. Blum (1988) 199 Cal.App.3d 976 [245 Cal.Rptr. 463]]. Claims sounding in equity will generally be subject to the four-year statute contained in CCP 343. [Whorton v. Dillingham (1988) 202 Cal.App.3d 447, 457 [248 Cal.Rtpr. 411]; Nelson v. Nevel (1984) 154 Cal.App.3d 132, 140 [201 Cal.Rptr. 93]].

Start of Statute of Limitations

Typically, for a Marvin claim defense, the statute of limitations will begin to run when the relationship ends. [See Estate of Fincher (1981) 119 Cal.App.3d 343 [174 Cal.Rptr. 18], Whorton, supra, and Kurokawa, supra]. However, if the defendant continues to perform on a contract after the break up, the cause of action does not accrue, and the statute of limitations does not begin to run until the Defendant stops performing. [Cochran v. Cochran (1997) 56 Cal.App.4th 378 [Cal.Rptr.2nd])].

Statute of Frauds

Another Marvin claim defense is to assert the Statute of Frauds. Should a plaintiff have already provided services in reliance on the defendant’s express or implied promise, plaintiff will be able to assert the statute of frauds as a Marvin claim defense . [See Marvin v. Marvin (1976) 18 Cal.3d 660, 674 fn. 9 [134 Cal.Rptr. 815, 557 P.2d 106]; Cline v. Festersen (1954) 128 Cal.App.2d 380 [275 P.2d 149]; Whorton v. Dillingham (1988) 202 Cal.App.3d 447,456 [248 Cal.Rptr. 405]); Byrne v. Laura (1997) 52 Cal.App.4th 1054 [60 Cal.Rptr.2d 908]].

Writing Requirement for Wills

California Probate Code section 105 requires that a contract to make a will be in writing. A defendant can be estopped from asserting, as a Marvin claim defense, this code since it is a code addressing the statute of frauds which is not applicable should plaintiff have rendered performance. [See Byrne v. Laura (1997) 52 Cal.App.4th 1054 [60 Cal.Rptr.2d 908]].

Meretricious Consideration Upheld

A typical Marvin claim defense is that any agreement was in exchange for sexual acts. Under Marvin, a contract between unmarried persons is invalid “if sexual acts form an inseparable part of the consideration for the agreement.” [Marvin, supra, 18 Cal.3d at 672].
The “meretricious consideration” defense was raised successfully in Jones v. Daly (1981) 122 Cal.App.3d 500 [176 Cal.Rptr. 130] (demurrer sustained without leave to amend where complaint alleged that plaintiff agreed to act as “a lover, companion, homemaker, traveling companion, housekeeper and cook” for a same-sex partner); Taylor v. Fields (1986) 178 Cal.App.3d 653, 664-665 [224 Cal.Rptr. 186] (alleged agreement between a married man and his mistress was based on unlawful consideration); and, Bergen v. Wood (1993) 14 Cal.App.4th 854, 858-860 [18 Cal.Rptr.2d 75] (services as a social companion and hostess are inextricably intertwined with the sexual relationship and therefore cannot form the consideration for an agreement.)

Meretricious Consideration Defeated

The Marvin claim defense was defeated in Whorton v. Dillingham (1988) 202 Cal.App.3d 447, 454 [248 Cal.Rptr. 405]). In this case, the court found that plaintiff’s services as “chauffeur, bodyguard, social and business secretary, partner and counselor in real estate investments” were “of monetary value, and the type for which one would expect to be compensated” and therefore could be “characterized as consideration independent of the sexual aspect of the relationship.” In another case, Alderson v. Alderson (1986) 180 Cal.App.3d 450 [225 Cal.Rptr. 610], plaintiff’s agreement to do “whatever a wife does” did not explicitly rest on meretricious consideration, even though the plaintiff viewed engaging in sexual relations as part of her “role”).

Choice of Law

The state in which the parties entered into an agreement will have jurisdiction to enforce a Marvin action and any Marvin claim defense. The law of that jurisdiction may govern the enforceability of the contract. [Henderson v. Superior Court (1978) 77 Cal.App.3d 583, 592-593 [142 Cal.Rptr. 478], a California decision holding that Florida law governed a Marvin claim arising out of a contract made in Florida]. Counsel should therefore check to see whether the parties’ home state follows Marvin, as not all states do. See, e.g., Hewitt v. Hewitt, 77 Ill.2d. 49, 349 N.E.2d 1204 (1979)).

Void Contract Made During Marriage

A contract may be void if, when it was entered into by the parties, one of them was married. This Marvin claim defense arise from the rational that a contacts may be unenforceable if they promote divorce because they are against public policy. [Marvin, supra, at 18 Cal.3d at 673]. However, the Marvin claim defense will not apply if the marriage was “beyond redemption” at the time of the agreement. [Glickman v. Collins (1975) 13 Cal.3d 852, 857 [120 Cal.Rptr. 76, 533 P.2d 204]; Feldman v. Nassi (1980) 111 Cal.App.3d 881, 885-887 [169 Cal.Rptr. 9])].

Contract Void for Vagueness

Unmarried cohabitants are rarely explicit about any agreement they may have regarding property sharing or support. Where the alleged agreement is based on the defendant’s vague promises to “take care of” or “support” the plaintiff, the defendant may wish to argue that the contract is too indefinite to be enforced. See, e.g., Hoxsie v. Clark (1965) 234 Cal.App.2d 370 [44 Cal.Rptr. 399] where an alleged promise by a decedent to “take care” of the plaintiff in her will was “very vague and indefinite and therefore unenforceable.” The viability of this defense has been thrown into doubt by Byrne v. Laura (1997) 52 Cal.App.4th 1054 [60 Cal.Rptr.2d 908], a recent case which suggests that the modern trend disfavors holding contracts unenforceable for uncertainty, holding that where the evidence showed that the decedent expected to provide for the plaintiff’s support, that expectation should be fulfilled, with the amount of support to be ascertained in light of extrinsic evidence.

Plaintiff’s Breach of the Agreement

As with any contract, the Plaintiff’s breach of a Marvin agreement should discharge the Defendant’s obligations under the agreement. (See, 1 Witkin, Summary of California Law 719 (9th ed. 1987)). For example, depending on the facts, the plaintiff might be held to have breached the agreement if it was the plaintiff, rather than the defendant, who left the relationship, or if the plaintiff was unfaithful. (See Bower v. Weisman (S.D.N.Y. 1987) 674 F.Supp. 109, 111 (recognizing the possibility that a Marvin contract “might permit a term in which [the plaintiff] promised to forbear from intercourse with anyone else”)).

Lack of Mutuality

Often, the Plaintiff will allege – in essence – that the Plaintiff was free to leave the relationship and stop performing services at any time, but still receive post-relationship support from the Defendant (sometimes lifetime support). The defendant should argue that such an alleged contract lacks mutuality and is therefore illusory and unenforceable. (See Cox v. Hollywood Film Enterprises, Inc. 109 Cal.App.2d 320, 325 [240 P.2d 713] (1952), in which the court declined to interpret an ambiguous lease provision as allowing the tenants to terminate the lease at any time and thereafter collect a $5,000 “bonus” from the landlord).

Equitable Defenses

If the Plaintiff is asserting claims sounding in equity, defense counsel should consider the application of equitable defenses such as the defense of “unclean hands.” (See Taylor v. Fields, supra, 178 Cal.App.3d at 666).

Real Property Presumption

California Evidence Code section 662 states that the owner of legal title to property is presumed to be the owner of the full beneficial title. This presumption may be overcome only by clear and convincing evidence. [Toney v. Nolder 173 Cal.App.3d 791 [219 Cal.Rptr. 497] (1985); Tannehill v. Finch 188 Cal.App.3d 224 [232 Cal.Rptr. 749] (1986)]. A Marvin claim that includes a request to share interests in real property can be defeated using this defense.