A “love contract” is an agreement you make with someone you love to help keep your relationship a loving one. It appeals to those couples who refuse to leave some aspects of their romantic relationships to mere chance. They can prepare a personalized love contract as a way to protect themselves from those aspects of their relationship that could cause future problems.
Love contracts are agreements between either married or unmarried couples that include terms not normally present in the traditional premarital or cohabitation agreement. A more traditional cohabitation agreement, which is executed by unmarried couples who live together, typically includes terms designating the division of expenses, how property will be distributed if the cohabiting couple’s relationship ends or one party dies, and financial support both during and after the relationship. Typical premarital contracts include the same sorts of terms, but are entered into between individuals who intend to be married.*
A love contract goes beyond the matters generally addressed in traditional premarital or cohabitation agreements and may include such things as
You don’t need to be rich and famous to have your own love contract, and you might even find yourself in the company of some well-heeled celebrities. Michael Douglas and Catherine Zeta-Jones, for example, are said to have entered a love contract with a provision requiring Douglas to pay Zeta-Jones $5 million upon their divorce if Douglas is found to have been unfaithful. Similarly, Jessica Biel and Justin Timberlake have a love contract that guarantees Biel $500,000 if Timberlake cheats. On the lighter side, Facebook CEO Mark Zuckerberg entered a love contract with his wife, in which he promised to spend a specified amount of “quality time” with her each week.
The enforceability of love contracts will most likely be determined by reference to the law of other cohabitation or premarital contracts, which varies somewhat from state to state. All states enforce premarital contracts as long as they are fair and just and satisfy the elements required of any contract (discussed below). Most states also enforce cohabitation agreements as long as they meet certain requirements (discussed below). As most love contracts contain a clause that “punishes” infidelity, however, courts in some states are not inclined to enforce them.
Some states, for instance, will not enforce an infidelity clause because it runs contrary to the public policy behind the state’s no-fault divorce law. The enforceability of love contracts is relatively untested in the courts and cannot be predicted with a great deal of accuracy. If a love contract fulfills the elements of other cohabitation and premarital agreements, however, and does not violate public policy, the courts of some states may very well enforce it.
In order for any contract, including a “love contract” or other cohabitation or premarital agreement, to be enforceable, it must satisfy certain requirements under the law. Under the law of most states, a contract satisfies these requirements if the parties are competent to contract (that is, they are of legal age and sound mind), if the subject-matter of the contract is valid (for example, not against public policy), and if each party has given something in exchange for the other’s promises (known as “consideration”). In Pennsylvania, however, consideration is not required for a written contract as long as the contract contains a statement that the parties agree to be legally bound. **
In a 2014 Pennsylvania case, the trial court held (and the appeals court, in a non-precedential opinion, *** agreed) that cohabitation agreements are generally valid and enforceable. If, however, such a contract includes an agreement regarding sexual services, at least that portion of the agreement will be unenforceable as against public policy. In fact, cohabitation agreements involving the division of property between non-married couples that do not include promises of sexual services have been held enforceable by Pennsylvania courts since as early as the 1980s. In addition, though many states require cohabitation contracts to be in writing, Pennsylvania does not. In the 2014 case referenced above, the cohabitation agreement in issue was a verbal agreement to equally divide the couple’s antique collection between them.
Though Pennsylvania courts have not yet considered the enforceability of love contracts in particular, the courts’ decisions regarding cohabitation and premarital contracts indicate that such agreements may be held valid and enforceable as long as they do not include provisions related to sexual services and are otherwise “fair and just.” The “fair and just” requirement is contrary to the law of contracts, generally, which allows parties to agree to anything, whether or not the terms are fair to both parties, as long as the terms are not against public policy. Courts require this added element in contracts between cohabiting, married, or intending-to-be-married couples because of the closeness of the parties and the resulting level of what is often blind trust between them.
Love contracts may also be upheld in New Jersey. The law of premarital agreements, for example, is defined by statute in New Jersey. Such contracts are allowed to include any matter regarding the personal rights and obligations of the parties not in violation of public policy. Thus, as is predicted with respect to Pennsylvania courts, New Jersey courts may be willing to uphold love contracts that do not contain promises related to sexual services or other matters against public policy as long as they are fair and just.
Despite the uncertainty that still exists regarding the enforceability of love contracts, you and your partner might want to consider entering such an agreement. While traditional cohabitation and premarital agreements usually relate to matters that will become relevant only when a couple’s relationship ends, a love contract often deals, in addition, with issues that are important to a couple while their relationship is still intact. Discussing and executing such a contract may allow couples to more adequately understand each other’s needs and desires, identify those things that are most important to each, and eliminate arguments that might have arisen over poorly communicated issues. More and more couples are entering love contracts for these very reasons. Most couples consider an infidelity clause to be the most important aspect of the agreement. If for no other reason, a love contract may be desirable as a deterrent to infidelity.
To have any chance at enforceability, your love contract must include the elements of a contract detailed above, be fair and just, and not include any terms related to your personal sexual relationship. Though not all states require cohabitation agreements to be in writing in order to be enforceable, putting your contract in writing is, nevertheless, advisable. Without a written agreement, both the existence of and the terms of the agreement may be difficult or impossible to prove.
The terms of a love contract should also be stated as clearly and in as much detail as possible. If a court finds your agreement to be unclear, it is less likely to be enforced. Lack of clarity regarding terms prohibited by public policy can also be avoided by including an express statement that the agreement of the parties is not made in exchange for sexual services.
As with any agreement, the assistance of an attorney knowledgeable in the construction and negotiation of contracts may make the difference between having a contract that is enforceable and one that is not. Your attorney can also help you to identify the items you wish to include in your agreement, paving the way for a smoother and more predictable relationship.
And finally, the big question: Does the love contract really work? We’ll have to check on Jessica and Jason in a few years and get back to you.
* For additional information regarding premarital and cohabitation agreements, see Prenuptial Agreements: Why Women Need Them, Premarital Agreements for PA Business Owners, and A Cohabitation Agreement—It Just Makes Sense.
** This phrase comes from the Uniform Written Obligations Act and acts as a substitute for the required element of consideration only in the State of Pennsylvania.
*** A non-precedential opinion is an unpublished opinion that cannot be relied upon as authority. Such opinions, nevertheless, provide useful insight into courts’ views on the area of law in question.