72 Pages Posted: 11 Oct 2019
Date Written: October 9, 2019
How and why do courts distribute property between unmarried couples when they separate? This Article offers an answer: they follow the rules laid out by coverture. Coverture is a regime, long considered defunct, that defined the appropriate roles husbands and wives occupied in marriage. Among other consequences, it prevented the wife from accessing property based on the work she performed in the course of the relationship—the husband had property rights in any labor she undertook within the home by virtue of her duty to provide homemaking services, and any wages she earned were technically his. This Article shows that courts both rely on and perpetuate central features of coverture in contemporary nonmarital cases: courts continue to define the roles individuals ought to occupy within marriage in the nonmarital realm, and they deny the individual who engaged in homemaking services access to property. Coverture thus helps to explain why the provision of services is presumed gratuitous and to contextualize a state of affairs in which the individual who acted as a “wife” remains impoverished.
Beyond presenting a more complete descriptive account of the cases, revealing the role coverture plays has a number of implications. Addressing its presence directly helps to question some of the accepted rationales underlying family law—like the oft-cited goal of privatizing support—and provides a new vantage point from which to revisit the debate on whether to remunerate housework. In particular, these cases show that the choice individuals face is not whether to remain at home or go to work but rather whether to marry or not. Moreover, the rules formulated in this context impact lower-income earners, as opposed to higher-income earners, given that the latter typically marry. As such, this Article identifies a different set of consequences that emerges from not recognizing the value of housework in a nonmarital relationship. Ultimately, exposing how coverture is alive and well in the legal spaces outside of marriage is an important first step to engaging in a grounded assessment of the ways that intimate relationships and property continue to be intertwined.
Keywords: nonmarriage, marriage, property, family law, equality
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