Leaving Home? Domicile, Family, and Gender
68 Pages Posted: 7 Jun 2014
Date Written: June 5, 2014
This article, based on the 2013 Brigitte Bodenheimer Lecture on Family Law, offers a close examination of domicile, a foundational but often invisible element of family law. Based on traditional assumptions about families and family members, domicile has operated as the routine choice of law reference for family matters while also playing an important jurisdictional role. Domicile’s often taken-for-granted significance reflects family law’s longstanding focus on the home, the continuing salience of gender, and a legacy of state control over intimate life.
Yet, new developments call for a fresh look at domicile. Several rulings in the wake of United States v. Windsor diminish the paradigmatic place of domicile notwithstanding the majority’s emphasis on family law as state, not federal, law. More broadly, in recent years family life and family law have changed enormously in ways that implicate domicile, which should not remain immune from the transformations evident in other aspects of the field.
The article proceeds in three parts: Part I introduces the concept of domicile, emphasizing its definition, its functions, and especially its primacy in what we now call family law. This analysis of domicile and its evolution highlights the features shared by domicile and the traditional legal treatment of intimate life or “old school domestic relations law,” as I dub it. This Part concludes by showing why domicile, which has changed little over the years, remains a gendered concept, thus perpetuating the legacy of old school domestic relations law.
Part II juxtaposes this older legal approach to intimate life with modern family law, using the law of parentage as an illustration that demonstrates the capacity for transformation. A narrow understanding of parentage once seemed natural and inevitable, but family law now has moved well beyond such old assumptions. In particular, today’s more expansive conceptualization of parentage exemplifies contemporary family law’s professed commitment to pluralism, liberty, and gender equality, as well as its responsiveness to changes in family life. This Part attempts to prompt a similar rethinking of domicile and its role, which also seem natural, by showing how family life has changed in ways that domicile cannot satisfactorily accommodate, including the rise of LATs (couples “living apart together”) and the blurring of traditional domestic units and boundaries.
Part III begins by demonstrating how today, with the advent of same-sex marriage, we have begun to see some weakening and narrowing in domicile’s paradigmatic position. This Part then looks beyond such erosion, sketching out three thought experiments — ways we might reconceptualize domicile, further limit domicile’s significance, or leave behind altogether domicile as we know it. Specifically, the article considers functional approaches discernible in certain statutes and law reform projects, party choice, and a corporations analogy. These thought experiments, while neither recommendations nor roadmaps, demonstrate the possibility of imagining alternatives to domicile, in turn, inviting still newer conceptions and offering choices about whether, and how, to leave home.
Keywords: Home, Family law, Choice of law, Gender, Marriage, Divorce, Jurisdiction, Parentage, Households, Living apart together (LAT), Marriage equality, Habitual residence, Home state, Party autonomy, Corporations, Federalism
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