News that might Affect Cohabitation Agreements

Thanks to Gary Welsh at Advance Indiana on pointing out a debate in the Indianapolis Star between a proponent (Curt Smith) and an opponent (Chris Douglas) of SJR 7 (the bill to amend the state constitution to prevent gay marriages). I do not intend for this blog to become a forum for political debates or to air my political views. Mr. Welsh's post has a good critique of the politics behind this date. Personally, I oppose this proposal for the reasons outlined by Mr Douglas - it does enshrine bigotry - but I also find it worrisome as a lawyer. The proposal aims at gays and lesbians but the proposal is a shotgun blast. Mr. Welsh captures that shotgun blast in this passage:

...If the legislature enacted any law pertaining to civil unions, domestic partner benefits, inheritance rights, hospital visitation rights, etc. which would benefit same-sex couples in the same manner as such laws benefit married couples, an Indiana court would be bound by the plain language of the second paragraph of SJR-7, which would prohibit it from construing any law as conferring any legal incident of marriage to any unmarried couple or group....

The amendment does not limit itself just to obvious target of its bigotry. The amendment will touch on heterosexual who are unmarried but living together. I think it would also prevent any court from upholding any cohabitation agreement.

If this amendment passes, I think it will place cohabitation agreements in the position of granting legal rights incident to marriage to unmarried couples. If SJR 7 proceeds to an amendment of Indiana's Constitution, it certainly presents a policy argument for not allowing cohabitation agreements and may even terminate further cohabitation litigation. The cohabitation cases trace back to Glasgo v. Glasgo, 410 N.E.2d 1325 (Ind. Ct. App. 1980). The Indiana Court of Appeals held that the parties were not trying to claim rights due to a common law marriage. In Putz v. Allie, the Indiana Court of Appeals in 2003 upheld an agreement between cohabitants entered into after their breakup over the argument that the agreement conferred property rights equivalent to marriage. Of course, being a lawyer, I can think of several counterarguments. Whether they will be effective is another story. That equivocation makes advising clients tricky, if not outright precarious. I would suggest that anyone considering a cohabitation agreement do so as soon as possible.