Ignorance in Bliss: Modeling Knowledge of Rights in Marriage and Cohabitation

We live our lives against an extensive backdrop of legal rights and responsibilities, yet a growing number of studies indicates low levels of public legal literacy. In the context of opposite‐sex cohabitation and marriage law, this study employs new survey data from the United Kingdom to explore, in detail, how many and which people are ignorant of the law, and what are the nature and origins of erroneous beliefs. We find that people's beliefs about both cohabitation and marriage law are frequently wrong. They are also strikingly similar, and reflect the divergence of social attitudes from the law. Our findings are consistent with the notion that legal literacy links to salience of issue. They are also consistent with recent public legal education initiatives that affected public understanding of cohabitation law, but we argue that social attitudes and the intransigence of erroneous beliefs generally present significant challenges to such initiatives.     

非婚同居中女性健康权保护的法律困境及对策

规范非婚同居已经成为我国婚姻法学界的共识,但同居中女性的健康权问题却被忽略了。在司法实践中,许多法官往往用侵权法规则来解决相关的法律纠纷,在现行的法律框架下,这只是一种权宜之计。女性在非婚同居中的健康权不仅仅是女性健康不受侵犯的一种私法上的消极权利,也是一种积极的权利,国家有义务通过相关法律制度来保障女性健康权,这一点需要通过尽快制定非婚同居的法律来实现。     

非婚同居的规制不会冲击结婚登记制度

结婚登记制度是非婚同居产生的制度条件,非婚同居不是对现行婚姻制度的冲击,非婚同居制度与结婚登记制度可以相得益彰。法律保护非婚同居,虽在一定程度上弱化婚姻法价值导向,但并没有动摇婚姻的主流地位,破坏家庭法目标的实现。婚姻危机无法缓解,并不能因此归责于法律承认和保护了非婚同居,而应正视和反思婚姻制度自身所面临的问题。法律对非婚同居的承认,并不排斥婚姻制度,人们根据自身的需要选择不同的两性结合方式。婚姻依然是人类自我延续和子女健康成长的必不可少的组织,应将婚姻置于优先保护的地位,赋予婚姻与非婚同居不同的待遇,婚姻家庭模式的主流地位得以巩固。     

Cohabitation from illegal to institutionalized practice: the case of Norway 1972–2010

The main objective of this article is to explore the institutionalization of cohabitation that occurred in Norwegian law in the period 1972–2010. From being (officially) illegal until 1972, cohabitation in its contemporary form has become majority practice, a child-rearing institution, as well as recognized in law in ways that blur the differences between cohabitation and marriage. Although cohabitation is common in many European countries, Norway is one of the few to have gone full circle. This article focuses on the changes in politicians’ ideas and norms regarding intimate relationships during this period. The empirical analysis is based on political documents and debates in the Norwegian parliament about cohabitation, marriage, single motherhood and the family.     

论婚姻家庭领域道德调整与法律调整的关系──兼谈对婚外恋的道德调整和法律调整

婚姻家庭关系的伦理性是道德调整和法律调整的客观基础。社会道德和法律共同规范着婚姻家庭关系。道德调整和法律调整的手段和领域不同。道德调整和法律调整在婚姻家庭关系中某些领域界限明确,可分别调整;但在另一些领域难以明确界定自己的调整范围,道德和法律可从不同层次加以规范。对婚外恋行为,道德和法律可分层调整,以实现道德调整和法律调整的效力。     

Regulation of Cohabitation, Changing Family Policies and Social Attitudes: A Discussion of Britain Within Europe

This article considers the differing legal and policy responses to the common trends of family restructuring away from marriage within Britain and Europe. Conceding that Europe is in the process of losing heterosexual marriage as a universal epicenter of family law at the very time when legal harmonization within Europe is being promoted, it goes on to explore the best way forward for regulating same- and different-sex cohabiting couples. It concludes that the legal response to these trends should be "de-moralized" but principled. A plurality of legal regulative structures to accommodate the now diverse family forms that are found within our less marriage-centric societies should be put in place providing at least some default protection for all families, yet allowing people to opt out and make their own arrangements.     

From lack of status to contract: assessing the French Pacte Civil de Solidarité

It has been suggested that the nature of marriage could be varied by private contract. In France a similar effect has been achieved by allowing couples to enter into an institution delimited by law but regulated by contract. Thousands of cohabiting couples have chosen to register a Pacte Civil de Solidarité . This suggests a strong desire for a real alternative to marriage and raises important issues about commitment in modern relationships. It is speculated that PaCS is likely to rank below marriage but above cohabitation in terms of relationship quality, stability and protection of the weaker party.     

事实婚姻的效力

事实婚姻在法律性质上原属于不存在的婚姻。 2 0世纪 70年代以来 ,西方国家的法律逐渐开始对事实婚姻予以调整 ,使同居双方具有一定的权利、义务。我国有关事实婚姻的法律规定有的较为笼统 ,需要解释 ,有的存在漏洞需要补充。     

重婚罪新论

重婚罪前一婚姻须是法律婚,后一婚姻可以是法律婚,也可以是事实婚。事实婚的认定标准是双方以终生共同生活为目的连续而稳定的同居。一个同时与二人以上结婚应以重婚罪定罪处罚。事实重婚的追诉时效期间应从双方自行结束同居关系之日起计算。     

Cohabitation and Comparative Method

The paper intervenes in current policy debates on unmarried cohabitation and comparative law debates on methodology. It adopts a culturally alert, discursive methodology of comparison to study regulation of unmarried cohabitation under the common law and civil law as well as the effect of an entrenched right to equality protecting against marital status discrimination. It identifies not different legislative solutions to a common problem, but distinct discourses of family law regulation. Yet the approaches are less radically opposed than is often thought. Discursive comparison tends to highlight dominant voices at the expense of minority ones, wrongly characterising minority views as foreign to a tradition. Discursive comparison should not confine itself to a synchronic view of present legal debates; a richer diachronic approach will also attend to views within a legal tradition's past.     

The Cultural Power of Law and the Cultural Enactment of Legality: The Case of Same-Sex Marriage

This paper examines the legal consciousness of same-sex couples with respect to marriage. Data from an interview-based study of 71 members of same-sex couples reveal strong consensus on the desirability of having samesex relationships legally recognized, and considerable variation in couples'attempts to enact marriage culturally through various practices, including the use of marriage-related terminology and public commitment rituals. I argue that some of these efforts to enact marriage culturally should also be read as attempts to enact legality in the absence of official law. The findings from this study challenge the idea that marginalized social actors will tend toward a resistant legal consciousness: Rather than seeking to avoid and evade legality in their everyday lives, most same-sex couples seem to embrace legality for its practical and symbolic resources, even as they stand "against the law" in their opposition to the exclusion of same-sex couples from the institution of legal marriage. Approaching marriage from the perspective of same-sex couples, this research demonstrates that the legal and cultural aspects of marriage are deeply intertwined. Cultural enactments of marriage enact legality even in the absence of official law, and many actors ascribe to law a cultural power that transcends its specific benefits and protections, the power to produce social and cultural equality.     

The polyamorous threat to nonmarriage

Some progressive U.S. Cities and several Canadian provinces now provide mechanisms for polyamorous families to register as such with state authorities. More than a million people in the United States identify as polyamorous and many more practice some form of ethical nonmonogamy. This article suggests that the growing recognition of polyamory poses a substantial threat to a simultaneous development in family law: the call by scholars and the Uniform Law Commission for courts to enforce a more implied contract, implied partnership and equitable claims in the context of non-marital conjugal cohabitation. Non-marital cohabitants argue that courts can infer marital-type commitments to share property from the fact of conjugal cohabitation. They argue that their nonmarriage should entitle them to the kinds of relief afforded to divorcing couples. But polyamorous conjugal cohabitation involves very different norms and commitments to reliance, partnership and transparency than does traditional marriage. Marital-type relief maps awkwardly, if at all, onto the reality of most polyamorous relationships. By bringing into relief that which we cannot necessarily assume about conjugal cohabitation, the recognition of polyamory questions what many proponents of more legal protection of nonmarital couples ask courts to assume about conjugal cohabitation, namely that it gives rise to reasonable reliance on a status quo and an intent to share property. Moreover, by providing a means for polyamorous households to register their relationships, polyamorous registration normalizes the idea of non-marital relationship registration. The more normal and expected it is for people who want rights as some form of family to register their familial intent with the state, the harder it is for those who have not so registered to argue that the state must treat them as some sort of family.     

UNTIL DEATH DO US PART? WHY COURTS SHOULD EXPAND PRENUPTIAL AGREEMENTS TO INCLUDE TEN‐YEAR MARRIAGES

It has become apparent that marriage, while still strongly valued by society and government, has become less appealing to Americans as a whole. The changes taking place in society, whether economic or moral, have resulted in married couples becoming the minority in the United States. This decrease demonstrates that there is a need for reform, and that couples need to be provided with new options that will incentivize them to choose this union over cohabitation. This Note will discuss how expanding prenuptial agreements to allow couples to contract to the length of their marriage may help to accomplish that goal. This expansion will give couples the ability to tailor their relationship to fit their individual expectations and quell the reservations commonly associated with formalized relationships. Furthermore, such an expansion would be consistent with current law regulating premarital agreements and would still allow state governments to remain involved in regulation, making it less drastic of a reform than privatization.     

Legal Theory for Legal Empiricists

There is a widespread view that one does either theory or empirical work, and that theory and empiricism represent distant concerns, opposing worldviews, and perhaps distinct mentalities or personalities. This prevalent view has deep roots and is also the result of pragmatic and understandable tendencies toward division of intellectual labor. Against this view, this essay suggests that the relations between theory and empirical study ought to be understood as more intimate and that making legal theory an explicit focus can improve empirical scholarship. We pursue this claim by articulating a basis for legal theory and by showing how that basis illuminates both the application and design of empirical research on law. Legal theory, we argue, follows jurisprudence in interrogating the law as a set of coercive normative institutions. The upshot of this approach is a recognition that an interdisciplinary analysis of law must rely on both a theory (explicit or implicit) of the way law's power and its normativity align and an account of the way in which this discursive cohabitation manifests itself institutionally. We thus argue that legal theory is necessary in order to draw fruitfully on empirical research and further claim that legal theory provides guidance both for setting up an empirical research agenda on law and for designing research into specific topics.     

Regulating Marriage and Cohabitation: Changing Family Values and Policies in Europe and North America—An Introductory Critique

The inspiration for this special issue came from our observation that the British and American approaches to family policy in general, and to marriage and cohabitation in particular, set them apart from their closest neighbors in Europe and North America, respectively. While certain demographic trends can be observed across the Western world, the response of Britain and the United States to such trends differs significantly from that of other jurisdictions in terms of family policy.     

The Obligations and Expectations of Couples Within Families: Three Modes of Interaction

What kinds of family structures emerge after a couple relationship is formed? How are obligations perceived towards the family of origin and the family of the partner? How are obligations perceived towards the older generation and towards children? How are conflicts of interest approached or resolved? How are the obligations arising from these personal relationships affected by gender, ethnicity, culture and religion? This paper reports some findings from a qualitative study of 39 men and women aged 25–40 which investigates the social context for the legal regulation of couple relationships; whether marriage, cohabitation or civil partnerships.     

Cohabitation,Registration, and Reliance: Creating A Comprehensive and Just Scheme for Protecting the Interests of Couples' Real Relationships

This paper argues that courts and legislatures should recognize and protect adult relationships other than marriage, in two ways. First, couples in committed, cohabitating relationships should be protected when their relationship dissolves—even if they are not formally married. The law in this area is currently inconsistent and confusing, and should be cleaned up to reflect the reality of the lives of committed couples in need of legal protection. Second, all states should establish a registration scheme along the lines of Colorado's designated beneficiary law, which allows couples to flexibly design their legal relationship. This status should include specific arrangements about the ownership of property over the course of a long relationship, and should also be expanded to allow people to enter into more than one such relationship at a time, as long as the rights and obligations are not inconsistent. Given the number of couples operating outside of traditional marriage today, these two reforms will increase certainty of legal outcome and better protect the reliance interests of those in committed relationships.     

Marriage,Cohabitation, and Crime: Differentiating Associations by Partnership Stage

A wealth of scholarship generally finds that marriage protects against crime, but there is less consistent evidence for cohabitation. In this article, we contribute to scholarship on marriage and put forward new evidence about cohabitation by examining marital and cohabiting partnerships as transitions with distinct stages of entry, stability, and dissolution. We use within-person change models with contemporary data from the National Longitudinal Survey of Youth 1997 to analyze these stages for the full sample and separately for men and women. The findings show differential protective associations of marriage and cohabitation depending on the stage of the partnership. Both recently formed cohabiting partnerships and stable cohabiting partnerships are associated with reductions in the level of offending, although to a lesser degree than marital relationships. Cohabiting partnerships that are stable, in that they have lasted at least a year, are associated with larger decreases in offending, particularly among women.     

Muslim marriage (non) recognition: implications and possible solutions

Differences between traditional Muslim marriage practice and the statutory formalities required for entry into a legally recognised marriage in England and Wales have resulted in serious question-marks hanging over the legal status of a seemingly significant proportion of Muslim marriages. This article places the spotlight on the vulnerability of spouses who remain unaware of the lack of legal status which may attach to their marriage or who may have been misled by their spouse as to the latter’s intention to obtain legal recognition for the marriage. The article first considers the statutory formalities required under English law for entry into a legally recognised marriage before drawing on the most up-to-date empirical research to highlight the apparently widespread non-compliance with the formalities within the Muslim community. The article then reflects on the various practical implications which may arise for parties to an unrecognised Muslim marriage before considering how the situation may be ameliorated.