Family Law Quarterly
Volume 50, No. 2 (Summer 2016)
Nonmarital Partner Rights and Families Today
Please note that pursuant to the ABA's copyright and reprint policies, these articles may not be disseminated without written permission.
Marriage Is on the Decline and Cohabitation Is on the Rise: At What Point, if Ever, Should Unmarried Partners Acquire Marital Rights?
Lawrence W. Waggoner
Marriage is on the decline and cohabitation is on the rise, and the time is ripe for consideration of what nonmarried cohabiters’ rights should be. This article presents for discussion a draft "Uniform De Facto Marriage Act."
The author uses recent government data to document the cultural shift; discusses Obergefell v. Hodges, the Supreme Court decision permitting same-sex couples to marry; examines the impact of same-sex marriage on the marriage rate; and considers other countries’ legislation, an American Law Institute proposal, and other resources to make the case for treating committed cohabiting couples as married in fact.
The proposed Draft Act assumes that couples who deliberately decline to marry should not have their decision overridden, and it therefore requires that a court judgment declare a couple married in fact. This judgment would qualify a couple for all federal and state benefits and obligations of marriage.
Nonmarital Families and the Legal System’s Institutional Failures
This article recommends that family law evolve better ways of helping unmarried parents transition to effective co-parenting after they separate or otherwise end their romantic relationship. An improved system would be founded on the premises that family law must address the needs of all families and that the relationship between parents is critical to children’s well-being. The framework would embrace and encourage noncourt alternatives, well as court-based reforms.
Models for reform are available. One is a Brooklyn Housing Court pilot program that placed trained nonlawyers in courts to help low-income pro se litigants and that could be adapted for family law cases. Another is Australia’s Family Relationship Centres (FRCs), community-based mediation centers designed to help unmarried parents address relationship issues so that they can either stay together or transition out of their relationship in ways that support their children.
I’ll Be Watching You: Alimony and the Cohabitation Rule
Cynthia Lee Starnes
Alimony comes with a celibacy clause. If you remarry, you will likely lose it. If your lover moves in with you, you may lose it or a chunk of it.
Cohabitation rules in most states treat live-in intimacies as a special ground for termination, suspension, or reduction of alimony. Hard-hit by these rules are mothers who performed most of the family labor during long marriages and whose earning capacity at divorce is far less than that of their former spouses.
This article searches for a rationale for the cohabitation rule in contemporary understandings of alimony and concludes that only concern for the integrity of the remarriage-termination rule—itself the subject of challenge—can explain contemporary cohabitation rules. The author argues that the cohabitation rule should be abandoned or, if it persists, that “cohabitation” be narrowly defined to include only those relationships that generate marital rights and responsibilities under state law.
“De Facto Relationships” in New Zealand—A Largely Unified Law
William R. Atkin
As is common in other Western countries, in New Zealand, many couples live together without being married. Approximately a quarter of New Zealanders in some sort of relationship are not married to their partners. This reality, familiar to many around the world, raises the question of how society and the law should respond.
Different jurisdictions have come up with a variety of answers, including, for example: do nothing; provide a special regime for de facto relationships; address some of the most urgent issues; or, in effect, treat such relationships the same as marriage. New Zealand falls mainly within the last of these categories. New Zealand has what could be labeled a unified system. This approach reflects another aspect of the antidiscrimination law. “Marital status” is a prohibited ground and is defined broadly.
Family Law for the Future: An Introduction to Merle H. Weiner’s A Parent-Partner Status for American Family Law (Cambridge University Press 2015)
Merle H. Weiner
The author’s new book, A Parent-Partner Status for American Family Law, is her reaction to the change in family demographics that by now family lawyers know well: many children have parents who are not married to each other. In fact, approximately forty percent of children are now born out of wedlock.
Family law tends not to alter the obligations between two people simply due to the fact that they have a child in common. The author argues that the law should. The book proposes a new legal status for two people who have a child in common: “parent-partner status.” The birth or adoption of a child should automatically trigger this status and an array of attendant core legal obligations between the parents. These obligations would exist whether the couple is married or not and would survive the demise of the couple’s romantic relationship.
Co-Parenting Agreements Between Unmarried Cohabitants
Leslie I. Jennings-Lax & Louise T. Truax
An unmarried, cohabitating couple decides to have a child together. In anticipation of or following the birth, they execute a parenting agreement to apply in the event they ever live separately. Is it enforceable? The answer is: “It depends.”
The concept of legal parentage is key. Parents who are genetic contributors and who have not utilized alternative reproductive technologies can establish it in standard ways. Same-sex couples and families who have used alternative reproductive technologies, however, will need to find other means of showing legal parentage.
Where legal parentage is not established prior to execution of the agreement, the issue is whether two individuals who share parenting responsibility can create in each other rights of custody and parentage by virtue of a private agreement. Such an agreement is typically not enforceable in court— but its provisions may guide the court in its determination of which orders of custody and access would be in the child’s best interests.