Marriage Matters: What's Wrong with the ALI's Domestic Partnership Proposal

Abstract

The ALI domestic partnership proposal would partially assimilate cohabitation to marriage: based on a finding of domestic partnership, it would impose on the cohabiting couple who have chosen to avoid marriage personal obligations identical to those the couple would have incurred had they elected to marry. The ALI proposal rests on the claims the absence of formal marriage may have little or no bearing on the character of the parties' domestic relationship and on the equitable considerations that underlie claims between lawful spouses at the dissolution of a marriage. However, the research evidence demonstrates that, in the United States, cohabitation usually functions as a substitute for being single, not for being married; cohabitants thus tend to behave and view their relationships very differently than married couples.

Adoption of the ALI proposal would also produce negative effects. The proposal requires individualized fact finding and thus would necessitate time-consuming and expensive litigation that would almost certainly produce inconsistent status determinations. The proposal would introduce discordant values into the law of relational obligation and diminish personal autonomy. Because marriage is associated with significant advantages to both marriage partners and adults, the proposal also risks harm to individual interests and the public good. For all these reasons, the ALI domestic partnership proposal should be rejected.

Keywords: marriage, cohabitation

JEL Classification: J12, J13, J18