A Liberal Analysis of Western Cohabitation Law

Abstract

Enclosed please find an article manuscript, aiming to shed a new light on the regulation of spousal relationships.

In the manuscript I challenge the conventional divide between two regulatory extremes: On one hand, censure of non-marital conjugal relationships and public policy commendation of marriage lead conservatives to reject the application of marriage law to cohabiting partners. On the other hand, resting on principles such as freedom, tolerance and equality, liberals tend to equate the mutual legal commitments of cohabitants with those of married partners. I break this dichotomy by offering a novel liberal model, founded on the pluralist constitutional theory that underscores the state's obligation to create a range of social institutions that afford meaningful familial choices to individuals. This model sets up two default regimes - one for marriage and another for cohabitation - and allows same-sex and heterosexual couples to choose between and customize those defaults.

Keywords: Family law, cohabitants, Liberal