Cohabitation's Boundaries and the Confines of Tradition

(2016) 25:5 Social & Legal Studies 525-543

28 Pages Posted: 1 Mar 2016 Last revised: 11 Oct 2016

See all articles by Robert Leckey

Robert Leckey

McGill University - Faculty of Law

Yann Favier

Jean Monnet University; CERCRID

Date Written: February 28, 2016

Abstract

This comparative paper inquires what cohabitation has done to law in France and Quebec, two places that have resisted reforming law to recognize cohabitants. It makes three contentions. First, the legislative drafters' 'conservative' approach has failed to 'conserve' marriage, its legal significance, and related legal categories. Despite legislative abstinence from recognizing cohabitants in formal, direct terms, ad-hoc responses to cohabitation have in effect amended marriage and surrounding law informally and indirectly. Second, a significant cleavage separates law from its dominant justificatory discourse, cohabitants' freedom to marry and to make arrangements for themselves by contract. Our survey reveals that this justification fails to convince the legislative drafters and judges whose work it purportedly justifies. Theoretical resources from critical geography, queer theory, and socio-legal work on law reform aid us in making out these contentions. Third, turning to the mentalité or legal culture of France and Quebec, the dominant approach to cohabitation may be symptomatic of an impoverished misreading of the civil law tradition’s resources and epistemology.

Keywords: cohabitation; comparative law; Quebec; France; marriage; law reform; boundaries

JEL Classification: K19

Suggested Citation

Leckey, Robert and Favier, Yann, Cohabitation's Boundaries and the Confines of Tradition (February 28, 2016). (2016) 25:5 Social & Legal Studies 525-543. Available at SSRN: https://ssrn.com/abstract=2739420

Robert Leckey (Contact Author)

McGill University - Faculty of Law ( email )

3644 Peel Street
Montreal H3A 1W9, Quebec
Canada
514-398-4148 (Phone)
514-398-4659 (Fax)

Yann Favier

Jean Monnet University ( email )

10 rue Tréfilerie
Saint-Etienne, 42023
France

CERCRID ( email )

6 rue Basse des Rives
Saint-Etienne, 42023
France
+33477421938 (Phone)
+333477421958 (Fax)

HOME PAGE: http://www.cercrid.fr

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