With Marriage on the Decline and Cohabitation on the Rise, What About Marital Rights for Unmarried Partners?

Abstract

This article draws attention to a cultural shift in the formation of families that has been and is taking place in this country and in the developed world.

Part I uses recent government data to trace the decline of marriage and the rise of cohabitation in the United States. Between 2000 and 2010, the population grew by 9.71%, but the husband and wife households only grew by 3.7%, while the unmarried couple households grew by 41.4%. A counter-intuitive finding is that the early 21st century data show little correlation between the marriage rate and economic conditions.

Because of the Supreme Court’s decision in Obergefell v. Hodges (2015), same-sex marriage is now universally available to same-sex couples. Part I considers the impact of same-sex marriage on the marriage rate. Part I then describes the benefits and obligations of marriage and closes by noting the demographic characteristics of cohabiting couples. The article points out that cohabitation is a temporary or short-term state in most cases: The parties either break up or get married fairly quickly. Nevertheless, a small percentage of cohabiting couples continue to cohabit for much longer or for life. Because more are added every year, these cohabitations accumulate in the population.

Part II discusses how the case law has addressed the rights and obligations of cohabiting couples when they break up. Titled From Contract to Status, this Part starts with the enforcement of contracts between the parties, then moves to the right of plaintiffs when they do not allege or cannot prove a contract. One route to recovery would be common-law marriage, but that concept was abolished by late-19th century statutes in almost every American jurisdiction. Nevertheless, in states that have abolished common-law marriage, cases exist in which the court awarded damages to the plaintiff based on status, i.e., in which the court described the couple’s relationship as a marriage in all but name.

Part III argues the case for treating cohabiting couples whose relationship shows that they are (or were) deeply committed to one another as married in fact. The article finds that a consensus of sorts has quietly emerged in legislation to this effect that has been enacted or introduced in the United Kingdom, Australia, Canada, and New Zealand. In this country, the American Law Institute (ALI) has recognized that longer-term cohabitants have rights similar to married couples upon dissolution of the relationship. Drawing on the UK and Commonwealth statutes, the ALI proposal, and the case law described in Part II, the article presents for discussion a draft De Facto Marriage Act. The Draft Act, however, along with the Commonwealth statutes and the ALI proposal, does not, and probably should not, provide a mechanism for automatically declaring a couple as married in fact. Couples who deliberately decline to marry should not have their decision overridden. Consequently, the Draft Act is not set up to be self-executing. A court judgment is required.

The article concludes by pointing out that a de facto marriage judgment would qualify a couple for all federal as well as state benefits and obligations of marriage.

Keywords: marriage, cohabitation, same-sex marriage, spousal privileges, community property, family law, trust and estate law, social security, taxation

JEL Classification: K10, K11, K12