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76 Notre Dame L. Rev. 1311 (2001).


When Michelle Marvin was forced to leave the home she shared with what today we would call her partner, Lee Marvin, she had a number of problems. The first ones, of course, were legal: she had no marriage with Lee and no written contract that could distinguish their relationship from "mere cohabitation." Nor had she contributed directly to his career or other assets. What she alleged was his express promise to "take care of her" (for some time period that was not altogether clear) and, less obviously, a promise implied by all she had done with and for him during the seven years they had spent together and, still less obviously, career sacrifices she allegedly made in order to further his career or to accommodate his express desire that she not work far away from him. As it turned out, she had fact problems as well and was ultimately unable to show either any sort of promise (agreement) or any benefit lost or conferred.

While the California courts would have let Michelle recover if she had been able to show any sort of contractual or equitable claim to relief—and this took them further than most courts would go, even today—we ought to be curious about whether this result, a result that did not occur in the Marvin case but has in countless others from all over the United States (and some foreign countries), would have been a just one. I am reflecting here on the impact of Marvin, and Marvin-type thinking, on married couples.

The inquiry that follows will address several correlative questions. What, besides a piece of paper, do married couples have that cohabiting couples do not? Why, from a factual as opposed to a moral point of view, might this justify different treatment of their finances when the couples break up? Why are the profound Marvin implications so closely related to a feminist agenda not only for the family, but also for the labor force? How can the value of "women's work" in the home be compensated to remedy the "gender gap" in earnings, and should it be? Is it fair, good, or wise to deal with these problems when couples divorce but not in a more direct and pervasive way when couples continue to live together? Finally, to the extent that Marvin sounds in contract, is there something about marriage that makes thinking in terms of entitlements, as contract doctrine encourages us to do, inappropriate or even destructive?


Reprinted with permission of the Notre Dame Law Review.

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