Judging in Marriage's Shadow

Abstract

This paper contributes to feminist debates on cohabitation by studying judicial discourse after legal reform. It examines how Canadian judges speak about cohabitation and decide whether cohabitants qualify as “spouses” for the purposes of property sharing. Judges compare cohabitants against an ideal of companionate marriage with gendered and class overtones. A contrasting tendency is to disavow moral judgments by declaring openness to a diversity of relationships. It seems difficult to operationalize cohabitation as a relationship form distinct from marriage. Indeed, the cases undermine assertions that reform makes married couples and cohabitants equal. Efforts to “modernize” family law appear to give new life to traditional ideals of the good marriage.

Keywords: cohabitation, equality, family law, judicial discourse, marriage

JEL Classification: K19