What is Nonmarriage?

53 Pages Posted: 7 May 2020 Last revised: 13 May 2020

See all articles by Katharine K. Baker

Katharine K. Baker

Chicago-Kent College of Law - Illinois Institute of Technology

Date Written: April 13, 2020


As rates of cohabitation rise and marriage becomes a status reserved almost exclusively for socio-economic elites, the scholarly calls for family law to recognize more nonmarital families grow stronger by the day. This article unpacks contemporary proposals to recognize more nonmarital families and juxtaposes those proposals with family law’s contemporary marital regime. Contemporary family law’s status-based system has some surprising benefits. It provides a mostly simple and efficient means of distributing resources at the end of a marriage by imposing a distinctly communitarian, non-market-based approach to obligation, entitlement and value. It dispenses with invasive inquiries into financial and sexual relationships, rejects gendered, neoliberal measures of recovery, and imposes collective obligations that can be efficiently enforced. But it leaves out the growing class of people who choose not to marry. The taxonomy provided in this article should help scholars and legislators endeavoring to grapple with when it is appropriate to treat nonmarital couples as some kind of family. First, conduct-based nonmarraige proposals, like common law marriage or “committed relationships” that impose communitarian obligations on cohabiting couples, inevitably require categorization costs, including invasive judicial inquiries into people’s financial and sexual practices. These costs may be particularly problematic for those who are most likely to cohabit - low income women, who are often women of color and who are often mothers. These women may be the ones who can least afford and have the most legitimate reasons to reject communitarian obligations. Second, registration-based nonmarriage proposals, like domestic partnerships or reciprocal beneficiary statuses, which do the best job of disrupting family law’s binary status system, respect the autonomy of those who do not want family law imposed on them against their wishes, but they run the risk of leaving those left vulnerable by the interdependencies of relationship with nothing and they undermine the social and legal norms that require those in families to share. Finally, the proposals that suggest dispensing with most of family law and just relying on common law doctrines of contract and unjust enrichment inevitably incorporate gendered, neoliberal understandings of desert and reward because that is how the market assigns value. For those who want to reject a neoliberal approach to reward and obligation, there are benefits to family law exceptionalism and the much maligned idea of seeing the family as the market’s opposite.

Keywords: Family Law, Gender, Parentage, Nonmarital Families, Cohabitation, Divorce, Family Status

Suggested Citation

Baker, Katharine K., What is Nonmarriage? (April 13, 2020). SMU Law Review, 2020, Available at SSRN: https://ssrn.com/abstract=3574711

Katharine K. Baker (Contact Author)

Chicago-Kent College of Law - Illinois Institute of Technology ( email )

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