Law Office Management
Jun. 2, 2011
No Longer "Living in Sin"
The contract-based approach that dominates the legal landscape of nonmarital cohabitation is ineffective in dealing with the basic economic realities of these relationships, says Frederick Hertz in his review of Unmarried Couples, Law, and Public Policy by Cynthia Grant Bowman
A mere 50 years ago it was unlawful in more than 40 states for unmarried heterosexual couples to live together. In addition, any monetary or property agreement premised on the sexual aspect of the relationship was viewed by the law as void, on the grounds that the consideration was "meretricious" or immoral. How times have changed: The latest U.S. Census results indicate that more than 15 million Americans now cohabit with a romantic partner of the opposite gender, and about 40 percent of those couples are raising a child together in their home. The legal doctrines guiding the financial lives of such households have evolved to some degree, but the applicable rules for the most part fail to protect an economically dependent partner. On the positive side, laws and policies denigrating the children of these relationships as illegitimate have been discarded as a result of rulings by the U.S. Supreme Court, and the broad preclusions disallowing state-court contractual claims between partners have been lifted in all but three states. Still, the contract-based approach that has come to dominate the legal landscape of nonmarital cohabitation in nearly every state remains a woefully ineffective method of addressing the fundamental economic realities of these relationships. Such is the insightful conclusion of a brilliant study by Cynthia Grant Bowman, a professor at Cornell Law School. Bowman's book successfully synthesizes a compelling social history of nonmarital cohabitation (starting with the persistent yet inconsistent Puritan anomaly of punishing straight cohabitants unless they behaved as if married, in which case "common law" would deem them married in some states) with a thorough narrative of the evolution of cohabitation law over the past 40 years. She explains the inadequacies of the dominant contractual approach that is now the rule generally in more than 40 states, drawn from the California Supreme Court's analysis in Marvin v. Marvin detailing how it rarely helps a dependent partner, given the inordinate focus on financial contributions and the unrealistic standards of proof. In the end she concludes that a system based on "de facto status" would be more appropriate, imposing a presumption of marital law rules on long-term cohabiting couples unless they expressly opt out by written agreement or rebut the presumption with evidence of a contrary understanding. One can certainly take issue with Bowman's sweeping conclusion--and to many it will seem an unappealing reinstatement of presumptive common law marriage. A similar proposal launched by the American Law Institute in 2002 was resoundingly rejected everywhere except in Washington state; domestic partnership registries (many of which include straight cohabitants) have been adopted as the preferred solution. One wonders whether Bowman's solution is at all realistic politically, and how many couples would be so attuned to the law as to take "opt-out" action when needed. But Bowman's encyclopedic knowledge of the legal history and her carefully crafted narrative style offer so much insight, readers can gain greatly from her scholarship without needing to adopt her recommendations. As Bowman explains, the current legal landscape for this growing segment of the adult population is the outgrowth of a century of social change, lingering legal uncertainties, doctrinal conflicts--and yes, an undercurrent of moral disapproval. Understanding this history is fascinating reading, and anyone who has been asked to file a palimony action, launch a probate battle on behalf of a disregarded partner, or counsel a couple on the risks (and benefits) of remaining unmarried will benefit from this marvelous exploration. Frederick Hertz, an attorney and mediator in Oakland, wrote Living Together: A Guide for Unmarried Couples (Nolo Press), and the forthcoming Counseling Unmarried Partners (ABA Book Publishing).
Kari Machado
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