Shackin’ Up & The Legal Effects of Cohabitation in Mississippi

Cohabitation, or the act of an unmarried couple living together, has become a prevalent social trend over the last 40 years. In fact, today, cohabitation has become a precursor to marriage. Many people decided to “test the waters” before marriage, and cohabitation is probably the most frequent method of doing so. In some ways, the saying that “you do not really know someone until you live with them” rings more true now than ever. But, in Mississippi, there are both criminal and civil legal effects of cohabitation that everyone should be aware of.

Criminal Cohabitation

It goes without saying, but Mississippi–being positioned in the Bible Belt of the United States–maintains a strong moral code and promotes family values. And believe it or not, cohabiting with another person is technically illegal in Mississippi. But fear not, the Mississippi Supreme Court has recognized that the anti-cohabitation statute is ignored with great frequency and criminal cohabitation virtually goes unpunished today. Davis v. Davis, 643 So. 2d 931, 935 (Miss.1994). Nevertheless, cohabitation is still considered a “crime against public morals and decency.” Id.

Under Mississippi law, “if any man and woman shall unlawfully cohabit . . . they shall be fined in any sum not more than five hundred dollars each, and imprisoned in the county jail not more than six months; and it shall not be necessary, to constitute the offense, that the parties shall dwell together publicly as husband and wife, but it may be proved by circumstances which show habitual sexual intercourse.” MS § 97-29-1 (2013). Thus, in Mississippi, criminal cohabitation is a misdemeanor offense that must be proven beyond a reasonable doubt in a court of law. The gist of criminal cohabitation is “habitual sexual intercourse.” But, evidence of habitual sexual intercourse alone is insufficient to prove unlawful cohabitation; the parties must actually reside or dwell together as well. Cutrer v. State, 121 So. 2d 106 (Miss. 1929).

In the end, Mississippi’s anti-cohabitation statute is rarely, if at all, enforced. It is very rare that anyone in Mississippi will ever be prosecuted for cohabiting with another person out of wedlock. Simply put, prosecutors and criminal courts simply do not see it as a valuable use of resources to prosecute cohabitation, especially given the burdensome standard of proof (beyond a reasonable doubt) required for criminal cases; and could you imagine the number of cases there would be? Nonetheless, cohabitation is still technically illegal in Mississippi.

Civil Cohabitation

As for the civil effects of cohabitation, the Mississippi “legislature has neither condoned cohabitation nor extended the rights enjoyed by married individuals to those who merely cohabit.” Davis, 643 So. 2d at 935. In addition, cohabitation cannot and will not foster what is known as a “common law marriage,” which would otherwise entitle cohabitants to certain relief after their cohabitation is terminated. As outlined in one of my earlier posts, Mississippi does not recognize common law marriage and has not recognized it since 1956. See MS § 93-1-15 (2014). So, in the event that cohabitants terminate their relationship, each person is generally entitled to their own property. In other words, there is no equitable distribution of assets or property accumulated during cohabitation following the termination of cohabitation (like there would be following a divorce) because there is no “marital property” to distribute because cohabitation, no matter its duration, does not constitute marriage in Mississippi. However, there have been isolated incidents of cohabitants being afforded certain marital rights. See e.g. Pickens v. Pickens, 490 So.2d 872, 875-76 (Miss.1986) (involving cohabitants who entered into a joint venture whereby though their joint efforts accumulated property together and were granted equitable division of homestead property upon proof of permanent break-up and separation). However, these cases typically involve a very unique set of facts and circumstances.

Additionally, cohabitation can have an effect on a divorcee’s right to alimony–or post-divorce, financial spousal support. Generally speaking, a material change in circumstances, including remarriage, is sufficient to terminate alimony due to a divorced spouse. Likewise, there is a legal presumption that cohabitation–like remarriage–is sufficient cause to terminate alimony payments. Scharwath v. Scharwath, 702 So. 2d 1210 (Miss. 1997). Thus, if a divorced spouse cohabits with another person while receiving alimony from an ex-spouse, the ex-spouse is entitled to terminate alimony under Mississippi law.

And lastly, persons who cohabitate may enter into a cohabitation agreement, which is a written agreement that generally outlines specifics regarding the extent of cohabitation (including an anti-nuptial clause stating that the parties are not and will not be married) and outlines what happens in the event the relationship is terminated, including how certain property accumulated during the relationship would be divided. However, be aware, cohabitation agreements may be per se unenforceable or invalid as violations of Mississippi public policy, and Mississippi courts are likely “unwilling to extend equitable principles . . . since recovery based on principles of contracts . . . would resurrect the old common-law marriage doctrine which was specifically abolished by the Legislature.” In re Estate of Alexander, 445 So. 2d 836, 839 (Miss. 1984) (quoting and adopting Carnes v. Sheldon, 311 N.W.2d 747, 753 (Mich. App. 1981)). As stated earlier, cohabitation is not supported by Mississippi public policy, and therefore Mississippi courts may very well be hesitant to validate cohabitation agreements where the Mississippi legislature has expressly forbidden cohabitation by statute. Nevertheless, there are always alternative forms of relief for invalidated cohabitation agreements. For example, in a 2013 case, the Mississippi Supreme Court held that an unmarried cohabitant may recover against his or her partner for financial contribution to assets in the other’s name based on the theory of unjust enrichment; unjust enrichment holds that a person should not unjustly benefit from another where circumstances exist such that, in equity and good conscience, restitution should be made. Cates v. Swain, No. 2010-CT-01939-SCT (Miss. 2013).

Ultimately, today, cohabitation is considered normative behavior. Cohabitation offers persons interested in a long term relationships to get to know one another before making a life-long commitment such as marriage. As can be the case, cohabitation often does not result in marriage. Nevertheless, there are certain legal effects–both civil and criminal–that attach to cohabitation, and it is important for Mississippians to understand those effects before shacking up.

As an experienced divorce and family law attorney I can help you better understand the legal effects of cohabitation in Mississippi. If you or a friend need professional assistance regarding a cohabitation dispute or any other family law matter, please contact the Law Office of M. Devin Whitt for a free consultation at (601) 607-5055.

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