Legal Treatment of Cohabitation in the United States*

This article discusses the variety of ways state legal systems in the United States treat cohabitation, both by same-sex and heterosexual couples. The different approaches are described along a spectrum that ranges from one extreme, under which cohabitants have essentially no rights against one another or against third parties, to the other extreme, under which cohabitants are to be treated as though they were married under state law. Different areas of law are discussed, including the rights of cohabitants both against one another (remedies upon dissolution, inheritance) and against third parties, such as state benefits, tort claims, health-related benefits, and rights concerning children. The article concludes with speculations concerning why the remedies offered to cohabitants in the United States are so limited, as compared with other countries.     

An Economic Exclusion/Male Peer Support Model Looks at “Wedfare” and Woman Abuse

In recent years “welfare reform” has become a vehicle for many neo-conservative social commentators to invoke marriage vows as a cure for poverty and the abuse of poor women. Their basic claim is that cohabiting relationships are not only more violent than marriages, but that married couples are happier, healthier, and wealthier than cohabiting ones. A policy then of encouraging cohabitants to marry, they claim, would lead to increased family wealth and decreased family violence. We examine these claims in this article, along with the alternative argument that marriage per se is not a solution to these problems. Alternatively we propose an economic exclusion/male peer support model that explains why many cohabiting men abuse women in intimate relationships. If forcing these couples to marry is not a solution, then structural solutions are necessary, along with progressive policy suggestions that address the antecedents of poverty and abuse. An earlier version of this paper was presented at the 2003 Trapped by Poverty/Trapped by Abuse Conference, Austin, Texas. The authors would like to thank Desmond Ellis, Claire Renzetti, Barbara Sims, Tom VanderVen and the anonymous reviewers for their comments and criticisms.     

Regulation of Cohabitation and Marriage in Canada

Marriage in Canada had lost much of its legal significance because of the extension of many of the incidents of marriage to unmarried cohabitants of the same or opposite sex. This process has resulted in large part from decisions of the Supreme Court of Canada that discrimination on the basis of sexual orientation or marital status is constitutionally impermissible. In a decision that seemed to many a surprising reversal of this trend, the Supreme Court of Canada in 2002 ruled that legislators could constitutionally exclude unmarried couples from family property laws. The effect of this decision has been to revive the legal significance of marriage. At the same time, courts have resurrected the social significance of marriage by accepting the argument of same-sex marriage advocates that a "separate but equal" civil union institution would not respect the constitutional guarantee of equality and by endorsing the constitutional right of same-sex couples to the symbolic value of marriage as a public and legal celebration of a relationship. Same-sex marriages may now be legally celebrated in three Canadian provinces, and the federal government has made a commitment to open up civil marriage to same-sex couples across the country. While some same-sex couples and unmarried cohabitants have fought for spousal or marital status, others have sought to avoid the burdens associated with spousal status. After the same-sex marriage debate is concluded, Canada will be ready to move on to consider whether all of the legal privileges and burdens now assigned to those in conjugal relationships, whether married, unmarried, same-sex or opposite-sex, can be justified.     

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.     

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.     

The marriage license as a hitting license: A comparison of assaults in dating,cohabiting, and married couples

There are many studies of marital and dating violence. However, methodological differences between these studies make it difficult to determine differences in the nature and extent of physical assault between marital status groups. This paper helps fill that gap by analyzing data from two surveys: a study of 526 dating couples at a large midwestern university, and a study of a national probability sample of 5005 married and 237 cohabiting couples. The results show that cohabiting couples have a higher rate of assault than dating and married couples. These findings persist after controls for age, education, and occupational status are introduced. Violence is also more severe in cohabiting than dating or married couples. A number of factors may account for the more frequent violence in cohabiting relationships. These include social isolation, the issue of autonomy and control, and the investment in the relationship.     

‘As if she was my own child’: cohabitation,community, and the English criminal courts, 1855–1900

This essay uses evidence from 217 violence cases between cohabiting couples to investigate the reaction of neighbors to irregular relationships. Ostracism was rare as long as the couples did not flaunt their status, for a number of reasons. First, working-class families lived in tenements and row housing that promoted cooperation for survival. Second, women preferred to live near their kin, and families were less disapproving, as they knew the reason for the cohabitation. Third, neighbors often stepped in to fulfill familial roles if kin were absent, encouraging both sisterly and motherly bonds in particular. Fourth, both men and women intervened, though in different ways. Men's participation was especially facilitated by their use of public houses, which was a liminal space that permitted freer discussion of men's personal lives. Fourth, neighborhood values delineated the ‘blame’ for problem families carefully; both men and women could face disapproval for flouting gender norms. Overall, neighbors parsed the reasons for cohabitation, the harm done by the couple to others, and whether the couple was disruptive in other ways before accepting or rejecting cohabitants in their midst. Indeed, drunkenness and violence was more of a problem than sexual nonconformity in most of these cases.     

论同性伴侣婚姻家庭权利的保护

传统观念认为婚姻是一男一女的结合，而同性恋者的性活动或性吸引力则指向同性的人群，所以同性伴侣就被排除在了婚姻法的保护范围之外。虽然就社会整体而言，同性恋群体是一个相对隐蔽的少数群体，但是同性伴侣的权益保护问题还是应当引起社会的重视，引起法律的关注。即使在我国当前从婚姻法上确认同性伴侣合法配偶身份的时机还不成熟，但我们还是应当鼓励和引导同性伴侣通过订立合同等其他方式保护自己的婚姻家庭权利。     

Unwanted cohabitation agreements

Given the predominant role in American law of cohabitation agreements in protecting cohabitants, this Article presents an informal study that measured attitudes toward such agreements. The results confirm the literature findings that people generally are not inclined to want cohabitation agreements upon cohabitation. Further studies might explore the reasons for the unpopularity of cohabitation agreements and the ways to improve the protection of cohabitants, and this Article offers potential considerations.     

Who's Your Daddy?: The Marital Presumption of Legitimacy in the Modern World and its Application to Same‐Sex Couples

Recently, the definition of marriage has been significantly altered. No longer do we find ourselves exclusively in the midst of “traditional marriage” between one man and one woman. Instead, everywhere we experience different kinds of marriages and diverse, nontraditional families. The United States has finally caught up to many advanced democracies in universally recognizing same‐sex marriage through the Supreme Court's decision in Obergefell v. Hodges. However, the next question remains unanswered: what about families of same‐sex couples? This Note explores the nature of same‐sex couples, their families, and in particular, their children. It addresses the issue of the marital presumption of legitimacy and encourages its application to all legally recognized married couples regardless of sexual orientation and biology. Even though prior to Obergefell some states were unwilling to apply the presumption, since the implementation of marriage equality, the next logical step would be to utilize the presumption to ensure that all parents, regardless of gender, are recognized and families are preserved.     

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.     

They watch for color: mixed-status couples experience with the police

This research qualitatively examines experiences with the police for 42 interracial mixed-status couples, living or originating mainly from the Southern United States. Race-based policing operates within a structure of racist nativism where white skin is a marker of U.S. citizenship, and brown skin is an indication of being foreign-born. Law enforcement at all levels, including the local level, situated their attention toward Latino immigrant men, especially those perceived as working-class, when compared to white U.S. citizen wives. The penalties for racial profiling included family strain through detention and deportation of Latin-American born men. In addition to human rights violations for undocumented Latino immigrants, U.S. citizens are serving as collateral damage in an already broken immigration system that racially profiles Latino immigrant men. Couples’ precariousness situations contest the rhetoric that police are only protecting citizens’ national security. Framed by racist nativism, the findings have implications for anti-oppressive, evidence-based immigration policy.     

Participation in Laboratory Research Result in Emotional Distress with One’s Partner: Comparing Violent and Nonviolent Couples

The present study compared impact of participating in laboratory research assessments on couples experiencing partner violence and nonviolent couples. Across two studies, 192 couples participated in a variety of potentially distressing laboratory procedures, including discussing relationship problems, viewing videotapes of their discussions, and completing questionnaires about personal and relationship problems. At the end of each laboratory session, participants rated their emotions about their partners as a result of having participated in the study procedures. Couples, recruited from the community, were placed into one of three groups: experiencing violence (V), nonviolent but maritally distressed (NVD), and nonviolent and nondistressed (NVND). Overall, study participants did not report high levels of negative feelings toward their spouses at the end of lab sessions. Few differences between V and NVD spouses were statistically significant, suggesting that violent spouses are not at greater risk than NVD spouses for negative feelings following study participation, although the finding of greater fear among V partners in one study deserves future attention. Relative to V and NVD couples, happy couples reported more positive and fewer negative feelings; NVD wives were the most likely to report negative emotions, in sessions involving a marital problem discussion. These findings can be used in discussions with Institutional Review Boards about the potential risks of laboratory procedures for violent couples recruited from the community.

Cohabitation in Europe: a revenge of history?

Unmarried cohabitation is often seen as a radically ‘new’ phenomenon, originating in the 1960s, but in fact it has long historical antecedents. The question is, however, whether traditional and modern cohabitation are comparable and whether we can speak of persistence. This article offers a literature review on cohabitation in Europe, with the focus on persistence over time, integrating the results of a 2013 conference on this topic. What sources are available to confirm or reject such persistence? How should we understand persistence? In terms of the motivations of unmarried cohabitants? Or in terms of the acceptance of the community at large? And if no real persistence is found, does this mean that European cohabitation since the 1970s truly represents ‘new’ behaviour? We show that, on the regional level, the legacy of the past is still visible in factors affecting the timing and frequency of marriage of cohabiting couples. These factors are a mixture of regional socio-economic constraints, the relative cultural importance attached to marriage, the religious history, and the level of secularization.     

INTEREST IN MARITAL RECONCILIATION AMONG DIVORCING PARENTS

This study offers the first research data on the interest of divorcing parents in marital reconciliation. A sample of 2,484 divorcing parents was surveyed after taking required parenting classes. They were asked about whether they believed their marriage could still be saved with hard work, and about their interest in reconciliation services. About 1 in 4 individual parents indicated some belief that their marriage could still be saved, and in about 1 in 9 matched couples both partners did. As for interest in reconciliation services, about 3 in 10 individuals indicated potential interest. In a sub‐sample of 329 matched couples, about 1 in 3 couples had one partner interested but not the other, and in 1 in 10 couples both partners were interested in reconciliation services. Findings were consistent across most demographic and marital factors. The only strong predictors of reconciliation interest were gender, with males being more interested than females, and initiator status, with far greater interest among those whose partner initiated the divorce. These findings are discussed in terms of attachment theory and future prospects of divorce services.     

Compensating Plaintiffs and Punishing Defendants: Is Bifurcation Necessary?

Critics of the civil jury have proposed several procedural reforms to address the concern that damage awards are capricious and unpredictable. One such reform is the bifurcation or separation of various phases of a trial that involves multiple claims for damages. The purpose of this study was to assess the effects of bifurcating the compensatory and punitive damages phases of a civil tort trial. We manipulated the wealth of the defendant and the reprehensibility of the defendant's conduct (both sets of evidence theoretically related to punitive but not to compensatory damages) across three cases in a jury analog study. We wondered whether jurors would misuse the punitive damages evidence in fixing compensatory damages and whether bifurcation would effectively undo this practice. Our findings indicated that mock jurors did not improperly consider punitive damages evidence in their decisions about compensation. Moreover, bifurcation had the unexpected effect of augmenting punitive damage awards. These findings raise questions about the merits of bifurcation in cases that involve multiple claims for damages.     

A consumer's perspective on domestic violence interventions

The current study takes a consumer perspective to examine the impact of legal and mental health systems on couples who are experiencing problems with domestic violence. Unfortunately, their thoughts and wishes are rarely considered when planning for change in their lives. The study asks couples what they think happens to cause abusive episodes, what happens to them when someone finds out about the abuse, and what their thoughts are about the interventions they receive. The specific interventions in this study were a pro-arrest policy and solution-focused brief therapy.     

Typologies of Intimate Partner Violence: Evaluation of a Screening Instrument for Differentiation

Given the prevalence and impact of intimate partner violence (IPV) in both community and therapeutic settings, it is vital that the varying typologies of IPV be identified and treated accordingly. The present study sought to evaluate the efficacy of a screening instrument designed to differentiate between characterologically violent, situationally violent, and distressed non-violent couples; focus was placed on identifying situationally violent couples so that they could be invited to participate in a conjoint pyschoeducational workshop. Couples from two samples were assessed to achieve this goal. Situationally violent couples (N = 115) from Sample 1 were screened into the study via a phone interview and participated in an in-home assessment, which assessed self-reported relationship violence. These couples were compared to a previously collected sample (Sample 2; Jacobsen et al. 1994) of characterologically violent, distressed non-violent, and situationally violent couples. The main hypotheses stated that couples from Sample 1 would report less severe relationship violence than characterlogically violent couples from Sample 2, and would report greater amounts of low-level violence than distressed non-violent couples from Sample 2. Additionally, similar rates of both self-reported violence would be seen for situationally violent couples from Samples 1 and 2. Multivariate analyses supported this with the exception that situationally violent couples from Sample 1 did not differ significantly across all domains from distressed non-violent couples in Sample 2. Implications for the screening instrument’s utility in clinical and research settings are discussed.     

The couple relationship when the female partner has an acquired physical disability

ABSTRACT

‘Whereas the couple relationship is described to be the relationship which is typically the most impacted by disability, spousal support is presented to be the most important form of support following such. To date little is known about the exchange of support and the impact of an acquired physical disability on the couple relationship, especially when considering the perspectives of both partners. Taking a feminist, a resilience and a systemic perspective, this paper seeks to address these gaps by presenting the stories told by three heterosexual couples in whom the females sustained an acquired locomotor disability in the course of the relationship. Individual and joint semi-structured interviews were held with each participating couple. The aim was to systemically understand how the beliefs, ideas and attitudes of each partner mutually contributed to the resilience and maintenance of the couple unit over time, taking also into consideration the contextual factors which helped or hindered the couples in this process.Thematic narrative analysis of the stories told showed how coping post-disability was brought about by mutual and reciprocal circular patterns of interaction initiated and maintained within the couple relationship and influenced by the socio-cultural context. Whereas it was difficult to decipher which party had started off these processes, their occurrence over time limited the burden experienced by both parties because of the disability. The females in this study were empathic and endowed with a sense of gratitude whilst the males were caring and supportive. Both parties were determined to help each other in times of need and to survive the disability ordeal as a couple even if this entailed self-sacrifice and adjustment. Such research presents novel insights about couples impacted by an acquired locomotor disability and the practices and interventions which practitioners, clinicians and policy makers can adopt in supporting couples following such’.     

Reinventing the Market? Competition and Regulatory Change in Broadcasting

The reforms instituted by the Broadcasting Act 1990 led to a period of turbulence and upheaval within broadcasting with results that were at best unintended and, at worst, seriously undermined the ideal of public service broadcasting. A Hayekian economic perspective would suggest that the reforms failed because they did not go far enough in the direction of full ÔmarketizationÕ. The paper develops an alternative perspective, based on an adaptation of systems theory within the context of law and economics. This approach offers a broader methodological foundation for the understanding of Ôeconomic lawÕ and a different normative perspective on the broadcasting reforms. It is suggested that the difficulty with these reforms was not their failure to go further in the direction of the market, but rather their lack of clarity in articulating a clear alternative to the market as the basis for the organization of television production.