The Law of Nonmarriage

64 Pages Posted: 2 Feb 2017

See all articles by Albertina Antognini

Albertina Antognini

University of Arizona James E. Rogers College of Law

Date Written: January 31, 2017

Abstract

The meaning of marriage, and how it regulates intimate relationships, has been at the forefront of recent scholarly and public debates. Yet despite the attention paid to marriage — especially in the wake of Obergefell v. Hodges — a record number of people are not marrying. Legal scholarship has mostly neglected how the law regulates these nonmarital relationships. This Article begins to fill the gap. It does so by examining how courts distribute property at the end of a relationship that was nonmarital at some point. This inquiry provides a descriptive account to a poorly understood and largely under-theorized area of the law. Analyzing property disputes offers a unique perspective: courts must assess the nature of the relationship and assign a value to the contributions made by each party. Considering various types of nonmarital relationships together — including unmarried couples who were also married at some point — shows that courts draw the line between marriage and nonmarriage inconsistently. Some courts only distribute property at the end of a relationship that looked just like a marriage; other courts require the exact opposite, refusing to distribute property in a relationship that approached, but never became, a marriage. Despite these inconsistencies, one very clear trend emerges: the individual seeking property, who in nearly all cases is a woman, has a difficult time receiving anything outside of marriage. This analysis further reveals how courts actively define marriage in deciding whether and how to distribute property in relationships that are not marital. Given the problematic picture of modern marital and nonmarital relations that materializes, this Article calls for moving beyond the marriage-nonmarriage dyad in allocating property rights between individuals who are not, or have not been, married.

Keywords: nonmarriage, marriage, property law, property distribution, family law

Suggested Citation

Antognini, Albertina, The Law of Nonmarriage (January 31, 2017). Boston College Law Review, Vol. 58, No. 1, 2017, Available at SSRN: https://ssrn.com/abstract=2909084

Albertina Antognini (Contact Author)

University of Arizona James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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