Unmarried Couples, Law, and Public Policy

In Unmarried Couples, Law, and Public Policy, Cynthia Grant Bowman explores legal recognition of opposite-sex cohabiting couples in the United States. Unmarried cohabitation has increased at a phenomenal rate in the U.S. over the last few decades, but the law has not responded to the legal issues raised by this new family form. Although a majority of cohabiting unions dissolve within the first two years, many are longer in term and function like other families; a large number of children also reside in these households. If one partner dies, is injured, or leaves the family, the remaining family members are left in an extremely vulnerable position in almost every state without any type of survivors' benefits, compensation for loss of a wage-earning partner, or remedies similar to those available upon dissolution of a marriage. The author argues that the many benefits attendant upon formal marriage should be extended to cohabitants who have lived together for more than two years or give birth to a child. In order to avoid these consequences, a couple would need to opt out of them by contract. Professor Bowman reaches this conclusion after a thorough review of the history of the legal treatment of cohabitation in the United States, the inadequacy of the legal remedies available to cohabitants in most states, the now-voluminous social science literature about cohabitation, and the experience of six other countries (England, Canada, Australia, France, The Netherlands, and Sweden) that have attempted a variety of legal reforms to address the problems of cohabitants.

Preface and Acknowledgements i Introduction 1 Chapter 1 Cohabitation in the United States: The Past 12 Criminalization of Cohabitation 13 Common Law Marriage and Related Fictions 23 Denial of Benefits to Cohabitants: A Case Study of Illinois 31 The Inadequacy of Equitable Remedies 43 Chapter 2 Legal Treatment of Cohabitation in the United States Today 52 Cohabitants' Rights Based on Contract 53 Cohabitants' Rights Based on Status 60 Meretricious Relationships in Washington 60 Domestic Partnership Laws 67 Rights Against Third Parties 78 Benefits from the State 79 Tort Claims against Third Parties 83 Health-Related Benefits 89 Cohabitants and Their Children 91 Chapter 3 Cohabitation in the United States Today 104 The 1960s 104 Change over Time 108 Statistics 108 Rate and Age of Marriage 110 Predictions 112 Who Cohabits and Why? 114 College Students and Young Dating Singles 114 Variations by Income 118 Variation by Race and Ethnic Group: African Americans 124 Variation by Race and Ethnic Group: Latino/as 127 Divorced Persons 131 The Elderly 132 Other Characteristics 134 Chapter 4 Social Science and Cohabitation 138 The Pioneers 138 Trends in the Literature 140 What Social Science Has Told us about Cohabitation 144 Duration of Cohabiting Unions 144 The Economics of Cohabiting Relationships 151 Management of money within cohabiting relationships 152 The impact of cohabitation upon the economic well-being of the partners and their children 155 Division of household labor between cohabitants 158 Quality of the Relationship 161 Domestic Violence and Cohabitation 166 Impact of Cohabitation on Children 175 What We Know: A Summary 185 Implications of the Social Science Findings 187 Chapter 5 Treatment of Cohabitation in Other Nations 191 England: Non Recognition and Piecemeal Benefits 193 Canada: The New Common Law Marriage? 206 De Facto Relationship in Australia 216 The Netherlands: A Cafeteria Approach to Cohabitants' Rights 224 France: Concubinage and the Pacte Civil de Solidarite 230 Sweden and Neutrality between Cohabitation and Marriage 239 Chapter 6 A New Law for Cohabitants in the United States 247 Recommendations for Reform of U.S. Law 250 Imposition by Law of Quasi-marital Status on Cohabitants after Two Years or a Child 250 A System of Registration for Domestic Partnerships 255 The Ability of Cohabitants to Contract Out of Obligations 256 The Impact of the Proposed Reforms on Marriage 258 Incentives and Marriage 258 Cross-historical and Cross-national Comparisons 262 The Impact of the Proposed Reforms on Various Groups of Cohabitants 267 Conclusion 272 Bibliography 274 Index