Blackstonian Marriage, Gender, and Cohabitation

38 Pages Posted: 24 Mar 2020 Last revised: 27 Mar 2020

See all articles by Naomi Cahn

Naomi Cahn

University of Virginia School of Law

June Carbone

University of Minnesota - Twin Cities - School of Law

Date Written: February 27, 2020


In Blumenthal v. Brewer, the Illinois Supreme Court held that it would not enforce an alleged agreement between a nonmarital couple that centered on their relationship. The National Center for Lesbian Rights argued that the court’s holding punished people who entered into a nonmarital relationship. Nancy Polikoff found the opinion “shocking.” Albertina Antognini suggests that nonmarriage cases refusing to enforce such agreements harm women. These accusations also reflect concern that Blumenthal-type results are designed to encourage marriage and penalize others.

Our analysis of Blumenthal and the nonmarriage cases starts from a different place. We think that the Blumenthal approach may not be entirely evil, even though we think Blumenthal itself raises issues about the retroactive application of these principles to people who could not marry at the time they began their relationship.

Prospectively, our approach to nonmarital relationships rests on the principle that such relationships should be seen as one of a continuum of possible types of intimate relationships, and their legal regulation should reflect the parties’ intentions in entering into them, intentions that are shaped by differing community norms. Central to such an approach are assumptions about the concept of equality between partners and between marital and nonmarital couples. At one time, marriage was conceived of as an intrinsically hierarchical institution necessary to protect women from the stigma and impoverishment associated with nonmarital sexuality. In that context, nonmarital relationships were associated with shame in some cases and, in others, the desire to craft more egalitarian unions.

Today, at a time when more than nine million people have entered into nonmarital unions and when women enjoy access to the means of self-support (albeit not full equality), the nature of nonmarital unions has changed. The stigma is gone and the reasons for entering into them have become much more varied, defying any cookie cutter approach to their legal regulation. We therefore argue that it is a mistake to assume that nonmarital relationships should necessarily generate the same legal consequences as marital ones or that a failure to generate the same legal consequences is somehow a penalty designed to discourage nonmarital relationships. Instead, legal regulations should follow from the nature of the relationships as they stand on their own terms, without a presumption that they rest either on interdependence between two partners making equal contributions or dependence arising from the assumption of gendered roles.

Keywords: family law, cohabitation, unjust enrichment, gender and marriage

Suggested Citation

Cahn, Naomi R. and Carbone, June, Blackstonian Marriage, Gender, and Cohabitation (February 27, 2020). 51 Arizona State Law Journal 1247 (2019), GWU Legal Studies Research Paper No. 2020-16, GWU Law School Public Law Research Paper No. 2020-16, Available at SSRN:

Naomi R. Cahn

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

June Carbone (Contact Author)

University of Minnesota - Twin Cities - School of Law ( email )

229-19th Avenue South
Minneapolis, MN 55455
United States

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