April 24, 1978 12:00 PM

“This decision will open the courthouse door to everyone living together, “declared Los Angeles lawyer Marvin Mitchelson after the California supreme court’s landmark ruling on Dec. 27, 1976. Singer Michelle Triola Marvin, actor Lee Marvin’s live-in girlfriend for six years, won the right to sue for community property and alimony after the couple split up, even though they had never been legally married. The Marvin decision, which is gradually being adopted by other states, has had a profound bearing on the California life-style. In that state alone, it is estimated that the number of couples living together outside marriage has increased eightfold in the past decade.

Mitchelson, 49, born in Detroit, is a graduate of UCLA and Southwestern law school. For the past 14 years he has been Hollywood’s top divorce lawyer, whose clients have included Zsa Zsa Gabor, Pamela Mason, Connie Stevens, Sonny Bono and Sara Dylan. Mitchelson himself has been married for 17 years to Italian actress Marcella Ferri, 43. They have one son, Morgan, 13. Mitchelson talked with Sue Ellen Jares of PEOPLE about the ramifications of the Marvin decision.

Why did you take the case of Michelle Triola Marvin?

I’m not trying to paint myself as a big crusader, but this was a case I believed in. I was waiting for one like it to come along. I believe that a woman who has lived exactly as a wife with everything but an $8 marriage license should have the same rights.

How far did the Marvin decision go?

It set forth several new, yet old, principles of law on which people who live together and find themselves breaking up could bring a lawsuit. The California supreme court said if there’s a promise made, it doesn’t have to be in writing. The court is going to enforce an express promise, written or oral.

What does a person need to prove such promises and agreements?

It’s enough merely to live a kind of married life with the duties, rights and responsibilities inherent in marriage—taking out the garbage, washing the dishes, wallpapering a room together. As long as the relationship isn’t meretricious—that is, based on sexual services for pay and therefore illegal—the conduct of the parties will determine whether they had an implied contract.

Might not someone try to prove his or her relationship is strictly sexual?

I feel sorry for anyone who tries that defense, because it’s laughable, insulting and degrading. And it would be hard to prove a relationship was entirely predicated on sex. Sex plus the sewing on of one button is going to take out the meretricious aspect and make it a relationship. The court virtually said, we recognize sex; everyone has sex; and anything short of prostitution will be rewarded.

Aren’t we talking about common law marriage?

In California common law marriage was abolished in 1895, and the recent Family Law Act did not make provisions for people who live together. The Marvin case decision states: “…thus we do not hold that plaintiff and defendant were ‘married,’ only that she has the same rights to enforce contracts…as does any other unmarried person.”

What’s the situation in other states?

The Marvin principles are applied in Minnesota, Oregon and the state of Washington. In Nevada a case is before the supreme court now. In almost every state there’s great discussion.

Does the time a man and woman live together before marriage now count in allocating property and setting alimony in a divorce?

Yes. In the case of Cherie Latimer V. Freddie Fields, it was established that they had lived together for four years before their marriage, which lasted only six months. The entire period was considered in awarding her $6,000 a month alimony.

Don’t some people live together specifically to avoid the problems and pressures of dividing property?

Yes, but usually one party hasn’t gotten the message. Later the man says, “I purposely didn’t marry her, because I didn’t want to pay alimony and divide property.” But he didn’t say anything to her about it.

Then should couples living together sign an agreement?

If they are trying to avoid the obligations of married people, they really don’t have to have an agreement, because they understand each other. If they do draw up an agreement, I think it advisable to show it to a lawyer. It will hold up if both know what they are signing and it’s fair. But it’s an insult and chauvinistic to say in a prenuptial agreement, “I don’t want to share anything with you. I don’t trust you.” Not too many people would be interested in that kind of relationship.

Don’t people feel that marriage is a greater commitment than living together?

I challenge that. It isn’t true anymore. We’re taught by our religious upbringing that anything short of marriage before an altar is a much less honorable status. But some 200 years ago in England there was just one kind of marriage besides church weddings—common law. There wasn’t any license. People who lived together were presumed to be married. Now to say you have no property rights if you’re not married is illegal, I think. We’re not talking about one-night stands or casual sexual encounters. We’re talking about people who say, “Let’s move in together and live as a family.”

How do married women feel about the Marvin decision?

They should love it. Now husbands can’t run around and have mistresses without paying the price.

What is the feminist reaction?

The trouble they have with Marvin is that their movement is dedicated to equality in the job market, so women won’t have to rely on these concepts of division of property. But that equality hasn’t happened yet. Feminists have to understand that it is just and fair to divide property if you truly have a partnership.

What is the male reaction?

For the first time the court has said that an unmarried woman’s services as a housekeeper are important and equal. The contribution of both parties in such a relationship can’t always be measured in equal dollars. Take two people who open a restaurant—one puts in the capital and the other does the work but invests less money. They’re still equal partners. Men have a tough time understanding this is fair.

Don’t a lot of elderly people live together unmarried for a better tax break?

Yes, and it’s a denial of equal protection of the law not to allow the same benefits whether you are married or unmarried. Within five years the marriage license won’t matter. Equality will be the law of this country—I really believe it.

What are some of the inequities between the marrieds and unmarrieds?

Let’s take an extreme example, and this time I’ll pick on the wife. A man and a woman are married for three months. He’s a songwriter and writes five new hits. She’s making it with every neighbor on the street, the dishes are piling up and she’s thumbing her nose at him. He makes $4 million, and she says, “That’s what I’m waiting for” and walks out. She gets an equal division of property, regardless of fault. It isn’t fair. She’s a lousy partner, but for an $8 marriage license she can pick up $2 million.

What about the unmarried woman?

Two people who live together unmarried have to put a lot more into the relationship than married people to claim anything. As a result of the Marvin decision, the court will look into the conduct of the parties to see what the reasonable value of the contribution is until legislation is enacted which will cut away the uncertainty. Rights will have to be spelled out. Now you’re better off getting married, because there’s less uncertainty.

What is the future of marriage, if the unmarried will soon be getting the same settlements?

Everyone asks me, “Why should these people have these rights? They chose not to say ‘I do’ or make the commitments.” People who live together hardly ever discuss finances. They just become “prisoners of love” and live like married people. Then when the breakup comes, they face the same problems.

So what does the Marvin decision boil down to?

All the court has done is to say, in effect, we’re really back to common law marriage. But let’s call it formal and informal marriage, licensing and nonlicensing. This is the first state supreme court to recognize modern life-styles.

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