Document Type
Article
Publication Date
2004
Publication Information
64 La. L. Rev. (2004)
Abstract
Are cohabitation and marriage similar enough to warrant similar legal treatment? Earlier public reports on cohabitation have focused on the question of whether cohabitation before marriage increases or decreases the divorce rate.
But increasingly cohabitation is being proposed not as a testing ground for marriage, but as a functional substitute for it. The trend in family law and scholarship in Europe and Canada is to treat married and cohabiting couples similarly, or even identically.
In this country, the American Law Institute [ALl] recently proposed that, at least when it comes to the law of dissolution, couples who have been living together for a substantial period of time should be treated the same as married couples. The ALI recommendations carry particularly intellectual weight, given they are the product often years of study by one of the most influential and mainstream voices on legal reform.
This essay evaluates (a) the weight of social science evidence on the extent to which, and the condition under which, cohabitation is the functional equivalent of marriage (b) the mechanisms, from a law and economics perspective, through which formal recognition of a relationship as a marriage may boost well-being, and (c) the likely consequences of blurring the legal distinction between formal and informal unions, as the ALI proposes.
Generally, we see too many problems with cohabitation defined as an alternative to marriage to believe that law and social policy should actively support this emerging family form. Looking at the weight of social science evidence on marriage and cohabitation, this paper suggests what we believe is a middle ground: law and public policy should distinguish between cohabitation as a prelude to marriage (or a courtship strategy) and cohabitation as an alternative to marriage. The evidence, we suggest, points to many fewer problems with the former than the latter.
Recommended Citation
Margaret F. Brinig & Steven L. Nock,
Marry Me, Bill: Should Cohabitation Be the (Legal) Default Option?,
64 La. L. Rev. (2004).
Available at:
https://scholarship.law.nd.edu/law_faculty_scholarship/633