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Marry Me, Bill: Should Cohabitation Be the (Legal) Default Option?

William G. Hammond Professor of Law, College of Law, University of Iowa, and member of the New Jersey, Washington, D.C., Virginia, and Iowa bars. Ph.D., George Mason University, 1994; J.D., Seton Hall University, 1973; B.A., Duke University, 1970.

Professor of Sociology, University of Virginia. Ph.D., 1976, Sociology with Distinction, University of Massachusetts, Amherst; M.A., 1975, Sociology, University of Massachusetts, Amherst; B.A., Sociology and Psychology, University of Richmond, 1972.

Bill, I love you so, I always will, I look at you and see the passion eyes of May. Oh, but am I ever gonna see my wedding day?

Oh, I was on your side, Bill, when you were losin'. I'd never scheme or lie Bill, there's been no foolin'. But kisses and love won't carry me 'til you marry me, Bill . . .

"Wedding Bell Blues," by Laura Nyro

Recorded by The 5th Dimension

Introduction

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.1

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.2

In this country, the American Law Institute [ALI] 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.3 The ALI recommendations carry particularly intellectual weight, given they are the product of ten years of study by one of the most influential and mainstream voices on legal reform.

These legal and intellectual trends no doubt reflect in part the increasing prevalence of cohabiting couples including cohabiting families. Our best evidence (from 1991) indicates that twelve percent of cohabiting couples have a biological child together.4 Births to cohabiting women now account for thirty-nine percent of all births to unmarried women.5

How will "institutionalizing" cohabitation, or treating cohabiting couples as if they were married, affect the couple, their children, and the well-being of marriage? These are the questions that need to be asked and answered, before courts, state legislators, policymakers, and scholars embrace legal proposals to treat cohabitation as a form of marriage.

Should law and social policy actively support the cohabitation option and if so, how? This could be accomplished by removing barriers to it. These might include laws against fornication,6 sodomy,7 or cohabitation8 and prescribing remaining legal differences in children's treatment based on their parents' marital state.9

Courts and legislatures in some jurisdictions have taken more affirmative actions to institutionalize and support cohabitation including establishing legal principles of "non-discrimination" between married and cohabiting couples and equalizing government benefits for formal and informal unions.10 Government could remove barriers to cohabitation for single mothers such as "man-in-the- house" welfare rules.11

The most radical view, espoused by some academics,12 would abolish marriage as a legal institution (although it could of course remain a religious practice). In this view, the law should treat all family forms the same. The move towards recognizing same-sex marriage in Massachusetts has created surprising support for this view from some advocates of the traditional legal definition of marriage. Douglas Kmiec and Mark Scarberry of Pepperdine University recently urged that Massachusetts "temporarily get out of the new marriage business entirely," rather than offer same-sex couples marriage licenses.13

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.14 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...

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