Forces Shaping the Law of Cohabitation of Opposite Sex Couples

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Concerns about the institution of marriage have worked to slow the development of a legal status for unmarried, opposite sex couples in the United States. Many forces have shaped the development of law in this field. First, historically, in our Anglo-American tradition, non-marrital cohabitation was viewed as immoral and socially unacceptable. This viewpoint found expression, for example, in widely enacted state criminal cohabitation statutes.

The first Part of this Article focuses on the criminal regulation of unmarried cohabitation, highlighting its present day ramifications for unmarried couples. Notably, state lawmakers have repealed the criminal cohabitation statutes in all but a handful of states, and the constitutional validity of the remaining regulations is highly questionable. In the modern context, the matter of family status recognition for cohabiting couples, discussed next in Part II, is the more significant issue. Still, the criminal regulation of unmarried cohabitation, and the perception of immorality and unacceptability embodied therein, remains the backdrop against which the matter of family status recognition must be understood.

Part II of this article begins by summarizing the current state of the law regarding status recognition for opposite sex cohabitants. Briefly stated, cohabitating couples receive limited recognition under Marvin v. Marvin contractual doctrines, domestic partnership laws, and occasional statutes and judicial opinions assigning a specific right or duty to the cohabiting relationship. The remainder of Part II explores reasons for the widespread failure to recognize and regulate unmarried cohabitants, reflected in this summary of current law.

The issue of recognition for unmarried cohabitation by opposite sex couples as a legal family status is an important one. The publication of the Principles of the Law and Family Dissolution by the American Law Institute in 2002 has reignited discussion about the appropriate treatment of unmarried couples in the family law system. Furthermore, the current debate in the United States about legal recognition for same sex partners has inevitably focused additional attention upon the general category of unmarried cohabitants. This Article identifies and analyzes the likely points of discussion in the unfolding debates about legal recognition and regulation for marriage-eligible cohabitants.

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