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How Will the Proliferation and Recognition of Domestic Partnerships Affect Marriage?

Lynne Marie Kohm

Regent University - School of Law

March 1 , 2002

4 J. FAM. STUD. 105 (2002)

An important facet of the proposal for domestic partnership in Chapter 6 of the American Law Institute's (ALI) Family Dissolution Principles is consideration of some critical questions. Will recognizing same-sex and heterosexual domestic partners and extending to them the same property and alimony rights extended to married spouses harm marriage? If so, how? If not, how? These are core questions that will assert themselves in many ways indirectly in this symposium, but it is clearly beneficial to address these questions directly, in the context of the specific ALI proposals in Chapter 6 of the Family Dissolution Principles. The ALI Principles of the Law of Family Dissolution would change the way we think about marriage. This discussion presents three considerations, or three potential answers to the central question. In the context of chapter 6 of the Principles of the Law of Family Dissolution proposed by the ALI, how will the recognition of domestic partnerships affect marriage? Answers:

1. Marriage will be downgraded, pragmatically easier to abandon. Particularly in light of the voluntary marital contracting promoted by the ALI recommendations, under chapter 6 of these proposals, marriage per se is no longer necessary for intimacy and companionship to be afforded many financial and legal benefits. The ALI's promotion of voluntary marital contracting would make it "increasingly possible for marriage partners to individualize the terms of their marriage?typically by contracting 'down' from statutory marriage, down to the point of depriving divorce of most legal consequences." This could also result in marriage being less emotionally and psychologically binding on its parties.

2. Options, choice and fluidity will dilute marriage. Chapter 6 of the Principles of Family Dissolution offers clarified rules for what has been long ago termed the "law of companionate marriage." Diluted by options, the institution of marriage will suffer from being watered down, weakened, even insipid. Choice and fluidity will make marriage more flexible, and will present options always more appealing, more interesting, and newer than the last. American culture seems to be continually searching for another new ecstasy, another fantastic experience. Relationships are no different, particularly in this context of fluidity and flexibility in sexual arrangements offering financial benefits. These first two answers show how the ALI recommendations "would allow most marital responsibility to be negated by voluntary marital contract, thus weakening marriage." Other scholars have also considered the possibility of this third answer.

3. Marriage would become an elite category because of the specific, unique and complete legal protections it offers under the ALI recommendations.

The ALI's principles impose greatly increased financial responsibility on divorce, thus strengthening marriage, while chapter 6 affords nearly every relational partnership financial benefits. This paradox could push many individuals searching for depth and meaning in their associations, affairs and personal relationships toward the high quality commitment marriage offers. Even in light of the benefits afforded to domestic partnerships under chapter 6, marriage remains superior to these arrangements. Individuals pursuing quality lifetime commitment arrangements will opt for marriage when at all possible.

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Date posted: May 10, 2001 ; Last revised: July 10, 2013

Suggested Citation

Kohm, Lynne Marie, How Will the Proliferation and Recognition of Domestic Partnerships Affect Marriage? (March 1 , 2002). 4 J. FAM. STUD. 105 (2002). Available at SSRN: https://ssrn.com/abstract=269418 or http://dx.doi.org/10.2139/ssrn.269418

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Lynne Marie Kohm (Contact Author)
Regent University - School of Law ( email )
1000 Regent University Drive
Virginia Beach, VA 23464
United States
HOME PAGE: http://www.regent.edu/kohm
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