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Cohabitation Agreements and Common Law Marriage in North Carolina

Believe it or not, cohabitation before marriage is technically still illegal in NC. This seemingly absurd law traces back to 1805 and was once referred to as the “Living in Sin” law. It was enacted on religious and moral grounds. However, although technically still on the books, its legal enforceability is in serious doubt following the Lawrence v. Texas decision of the United States Supreme Court. No one has been prosecuted for cohabitation in modern legal history in North Carolina.

North Carolina general statute 14-184 - Fornication and adultery states:

“If any man and woman, not being married to each other, shall lewdly and lasciviously associate, bed and cohabit together, they shall be guilty of a Class 2 misdemeanor: Provided, that the admissions or confessions of one shall not be received in evidence against the other.” In this case, the Class 2 misdemeanor has a penalty of up to 60 days in jail and a fine of up to $1,000.

Note, however, the legality of this statute is highly suspect, which is why it has never been charged in modern North Carolina history.

What Is Cohabitation?

Cohabitation is defined as unmarried adults living together continuously and habitually in a manner akin to marriage. Put another way, to be cohabiting, both parties must perform functions and activities as married couples do. These usually include sharing financial responsibilities, receiving mail at the same address, jointly purchasing a property or otherwise holding yourself out to the community as if you were married.

What Is Common Law Marriage?

Common law marriage, also referred to as non-ceremonial marriage, is a legal framework where a couple may be considered married without having formally registered their relationship as a civil or religious marriage.

Does North Carolina Recognize Common Law Marriage?

North Carolina does not recognize common law marriage. The only marriage valid in the state of North Carolina is celebrated in a ceremony presided over by a minister or a person authorized by the law to preside over marriage ceremonies and one in which the persons seeking to be married have a marriage license registered with the state.

Do Cohabiting Couples Have Marital Rights?

Cohabitation does not confer marital status on living partners in North Carolina. It does not create property rights, nor does it confer the right to alimony or spousal support. Note, none of these issues affect the rights of persons with children in common to sue for custody or child support.

Cohabitation Agreements

Cohabiting couples in North Carolina have no legal status. Setting up a contract with a cohabiting partner can help with things should your relationship end and you need to divide up assets.

A cohabitation agreement is a good option for couples who want to live together without getting married but also wish to establish rules in case of a breakup, particularly related to joint property. In these legal contracts, both parties specify the terms of how they wish to separate assets, debts, maintenance obligations and other issues arising from the end of a relationship.

Consider creating a cohabitation agreement with your partner if you:

  • Owned property before entering the relationship
  • Plan to buy property with your partner while in your relationship
  • Have an agreement that one partner will work and financially support the other person following any breakup

Does Cohabitation Affect Alimony Payments?

In a word, yes. It is common for separated or divorced couples to have relationships with a new partner. When they do, the status of this relationship can affect or even terminate spousal support such as alimony or post-separation support. Generally, the existence of a new romantic partner does not stop the right to alimony UNLESS that romantic partner lives with the person receiving alimony in a relationship similar in nature to marriage. However, remarriage and death of the supporting spouse both stop the dependent spouse’s right to alimony.

Under North Carolina law, alimony payments terminate once the dependent spouse cohabits with a new romantic partner. For example, if you are paying alimony to your former spouse and they start living with a new romantic partner, you can apply to the court to stop alimony. The court will then decide whether to terminate your alimony responsibilities.

One thing to consider is that romantic partners often sleep at each other’s houses. This does not automatically mean they are cohabiting. They are not cohabiting if they both maintain their separate dwellings and/or keep their financial interests separate.

Proving Cohabitation

Establishing that an ex-spouse is cohabiting with someone requires evidence. For example, when two individuals share expenses, live in the same dwelling, and are engaged in a romantic relationship, they are cohabiting under the law. You need to file a motion and provide evidence to the judge at the hearing.

Some evidence of cohabitation would include: 

  • Witness testimony from the cohabitant’s neighbors
  • Private investigator’s reports
  • Photographic and video evidence that they are living together
  • Evidence of frequent vacations together
  • Evidence of a joint bank account or joint debts
  • Evidence that they both receive mail at the same address
  • Proof that their relationship is similar to a marriage-type relationship

Have a question? Contact Morrow, Porter, Vermitsky & Taylor, PLLC to discuss cohabitation or alimony in North Carolina.