One of the hottest topics in family scholarship today is the proper legal treatment of unmarried cohabiting couples. Of course, it is hardly a new topic: it has been a center of controversy at least since the Marvin v. Marvin decision almost 45 years ago. On one side, it has been argued that giving unmarried couples marriage-like rights (equitable division of property at the end of the relationship or a claim for something like alimony) would undermine the public policy favoring marriage, while also not respecting the autonomy of those who declined to marry precisely to avoid such obligations. On the other side, refusing any marriage-like rights to long-term unmarried cohabitants would arguably fail to protect vulnerable parties (in particular, those partners, usually women, who have given up careers) and create an unjust result between the parties (where often one party leaves a long-term cohabitation with much more property than the other, often after having promised that household earnings would be shared).
During the decades since Marvin v. Marvin, the number of couples cohabiting outside of marriage has increased significantly; the Census in 2018 reported that more people in the 18-24 year group were living with a partner than were living with a spouse. However, outside a handful of states (e.g., Washington State, with its status of “Committed Intimate Relationship”), and excluding the small number of couples who enter detailed written agreements, unmarried cohabitants are still treated as legal strangers. Indeed, as Kaiponanea Matsumura points out in “Breaking Down Status” – and others have pointed out as well1 – cohabitants are treated by the law worse than legal strangers, as courts will regularly refuse enforcement of informal agreements between cohabitants (exchanges are presumed to be made altruistically) that would be more likely to be enforced between strangers. (P. 58.) Continue reading "A Status Breakdown"