Moving In Without Marriage

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Scholars debate the proper status of cohabiting partners under family law.

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Many states once criminalized living together before marriage. Some laws labeled couples’ choice to move in “lewd and lascivious conduct.” Now, cohabiting without marrying is increasingly common in the United States.

According to a study from the Pew Research Center, most Americans approve of this trend. Catching up with public opinion, state legislatures have repealed old, unenforced statutes that banned nonmarried cohabitation. Only one state—Mississippi—still has a law criminalizing the practice.

But even as more and more couples decide to live together without marrying, experts and policymakers dispute what legal status these couples should hold: Should the law offer rights and obligations to cohabiting couples as though they were married?

Commentators often approach this question by starting at the end—when couples break up.

State family laws afford well-defined rights for married couples at divorce, including laws governing property distribution, spousal support, and damage awards. In contrast, most state legislatures are silent on how to treat unmarried cohabiting couples during separation. State courts have filled this void by applying common law, resulting in a spectrum of treatment across the country.

Most state courts have adopted an “opt-in” approach to treatment of cohabiting couples at relationship dissolution, under which couples can choose to contract into marital-like rights and obligations. These states follow the logic of Marvin v. Marvin, a landmark divorce case in which the California Supreme Court held that cohabiting partners could enter into enforceable contracts governing shared earnings and property distribution at separation. Prior to this decision, most courts rejected such contracts on public policy grounds. These court decisions often reasoned that property agreements between nonmarried couples were unavoidably based the exchange of illicit sexual services for financial support. A minority of states still hold this view.

Proponents of the opt-in approach argue that it respects the choice of nonmarried couples to define their level of obligation to each other by contracting outside of marriage. Experts point out, however, that even in states that recognize such freedom of cohabiting couples, getting a contract enforced is not guaranteed. Courts often impose high evidentiary burdens to prove the existence of an agreement.

Unlike most jurisdictions, Washington State affords marriage-like treatment to long-term, financially interdependent cohabiting couples by default, unless the couples have contracted otherwise. Under this “opt-out” model, courts apply the same equitable property distribution rights to cohabiting couples upon separation as they would to married couples upon divorce.

Proponents of the opt-out approach contend that it clarifies the law for couples and protects the rights of economically vulnerable individuals in relationships. Critics of the model, however, insist that it gives judges too much power to impose obligations on people who have decided not to marry.

Some commentators argue that states should offer protections for cohabiting couples regardless of how closely their relationship resembles a marriage. For example, the Uniform Cohabitants Economic Remedies Act of 2021 would codify the rights of cohabitant couples—whether or not they are in a sexual relationship—to bring claims against each other upon dissolution of their living arrangement.

In this week’s Saturday Seminar, scholars debate the proper treatment of nonmarried, cohabiting couples under the law.

  • Courts should not treat nonmarried couples as though they are married, Katharine K. Baker of the Chicago-Kent College of Law argues in an article in the University of Pennsylvania Journal of Constitutional Law. Baker argues that the functionalist approach to nonmarriage—under which courts determine that couples should be treated as married based on their conduct—threatens to reinforce politically dominant views as to what constitutes family. Baker argues that values of self-determinacy and privacy, as well as recognition of pluralistic family forms, would be better protected if couples could instead opt in to marital-like treatment through relationship registration systems.
  • Family law puts nonmarried partners in a “double bind,” Courtney G. Joslin of UC Davis School of Law contends in a George Washington Law Review article. Joslin explains that under current law, most states do not consider nonmarital partners family. As a result, these couples do not enjoy marital protections without contracting into them. At the same time, courts often deem the bargains of nonmarried couples as encompassing “family-like” conduct, such as the exchange of household labor for financial support. Joslin explains that, under this analysis, courts subject nonmarried couples’ contracts to overly strict formality requirements. Joslin emphasizes that this aspect of family law leaves these couples in a “lose-lose” situation—without the protections of a married couple and without the ability to freely contract.
  • In an article in the Connecticut Law Review, Erez Aloni of the University of British Columbia Peter A. Allard School of Law examines the impact of changing the default rules for unmarried partners in British Columbia from an opt-in to an opt-out system. Through interviews with 30 couples, Aloni finds that many cohabitants are unaware that they are considered spouses under the opt-out requirement because of the complicated nature of the province’s law. For opt-out regimes to work effectively, he suggests that they be better tailored to diverse populations, comprehensible to couples, and include accessible methods for opting out.
  • To reform how marital property is handled—and to reposition unmarried partners’ relationship in between that of spouses and strangers—family law should adopt a “spectrum of intimacy” framework similar to property law, Emily J. Stolzenberg of Villanova University In a Maryland Law Review article, Stolzenberg examines the dynamics between property law and family relationships and argues for a reimagined approach to property entitlements within intimate partnerships. This approach, Stolzenberg notes, could offer a more equitable distribution of property upon the dissolution of both marital and non-marital relationships. The traditional approach relies on title to determine ownership rights and often leaves economically vulnerable partners at a disadvantage, she critiques.
  • In an article in the Maine Law Review, judicial law clerk Bailey D. Barnes argues that states should enforce express cohabitation contracts for unmarried, cohabiting couples. He contends that state enforcement of cohabitation contracts can better protect vulnerable partners when their romantic relationships end, including by enforcing an equitable distribution of joint properties. Barnes notes that express contract theory “requires states to move beyond antiquated objections to pre-marital sex.” He maintains that many state laws surrounding family relations fail to reflect the nature of modern relationships, and that states should stop promoting marriage as the “gold standard.” Just as states permit individuals to enter into agreements with other people and corporations, Barnes argues that states should recognize cohabitation contracts.
  • The Internal Revenue Service should provide clear guidance to unmarried, cohabiting couples as to the federal income tax consequences of property transfers should their romantic relationships end, contends Keeva Terry of Howard University School of Law in an article in the University of Cincinnati Law Review. She observes that in recent years, many exclusive, committed couples have chosen to pool their economic resources and live together without getting married. Terry argues that tax rules for cohabiting couples should not mirror marriage laws and that nonmarriage should instead be considered a distinct body of law. She notes that upon the dissolution of a cohabiting relationship, the economic realities of these relationships should dictate taxes on property transfers.

The Saturday Seminar is a weekly feature that aims to put into written form the kind of content that would be conveyed in a live seminar involving regulatory experts. Each week, The Regulatory Review publishes a brief overview of a selected regulatory topic and then distills recent research and scholarly writing on that topic.