Consent to Intimate Regulation
71 Pages Posted: 12 Jun 2018
Date Written: May 24, 2018
Approximately fifteen percent of the adult population in the United States — more than 35 million people — are in informal intimate relationships. In contrast to the highly regulated marital relationship, unmarried partners largely evade laws that turn on relationship status. This invisibility has benefits and costs: partners can walk away from the relationship without burdensome judicial involvement, but they also miss out on laws that create joint property ownership or provide survivor benefits upon death. Most courts and scholars agree that the law should extend some rights and obligations to people in nonmarital relationships, but they have struggled to solve the puzzle of when and to whom the rights and obligations should flow. The existing implied contract and implied status approaches have not been wholly unsuccessful at providing rights to nonmarital partners, but they work infrequently and incoherently. That is because they have either dismissed consent or have misinterpreted it, favoring nonviable rationales such as dependency creation or similarity to marriage.
This Article seeks to reclaim consent as the basis to regulate informal intimate relationships. As a conclusion about the nexus between will, conduct, and consequence, consent is an analytic tool well suited to interrogating when intimate relationships should trigger legal consequences. This Article proposes two doctrinal improvements to establish whether nonmarital partners have consented to regulation. First, it outlines an objective approach to determine whether parties’ conduct justifies the imposition of relevant legal obligations. Second, it argues that the inquiry should often focus on discrete commitments — whether property sharing, ongoing financial support, or companionship — rather than all of the bundled rights and obligations of marriage. Nonmarital partners may often consent to some, but not all, of these obligations. This improved consent framework suggests reforms to existing doctrines and also grounds functional approaches that respond to nonmarital partners’ needs and lived experiences.
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