70 Pages Posted: 4 Jun 2014 Last revised: 10 Oct 2017
Date Written: June 2, 2014
Family law is now replete with proposals advocating for the legal recognition of nonmarital relationships: those between friends, relatives, unmarried intimate partners, and the like. The presumption underlying these proposals is that legal recognition is financially beneficial to partners. This assumption is sometimes wrong: Legal recognition of relationships can be harmful to unmarried partners — a reality whose impact on policy concerning regulation of nonmarital unions has not been explored. As this Article shows, a significant number of people benefit financially from nonrecognition of their relationships. While in most cases the state turns a blind eye to this financial gain, when it comes to a particular set of benefits, the state routinely recognizes partners against their will in order to withhold or terminate benefits, a subset of ascriptive recognition that I call “deprivative recognition.”
Deprivative recognition is unjust because it is asymmetrical: It deprives couples of benefits they would receive if they were unpartnered while they nevertheless remain ineligible to receive benefits granted to married couples in similar arenas. This asymmetry is particularly troublesome because those who enjoy the benefits of nonrecognition often belong to particularly vulnerable populations, such as those who qualify for means-tested programs. This Article recognizes and provides a normative assessment of deprivative recognition and the distributive injustices it creates.
Identifying deprivative recognition, in turn, unearths a larger set of theoretical questions about the interplay between cultural recognition and distributive justice in the law of unmarried partners, including a question about what kind of law promotes both cultural recognition and distributive justice for unmarried partners. The Article builds on Nancy Fraser’s theory of recognition and redistribution as a “folk paradigm of justice,” explaining why it is essential for the law of unmarried partners to adopt both of these aspects of justice and how this can be done.
Keywords: same-sex marriage, cohabitation, unmarried partners, recognition, distributive justice
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