Cohabitation
| Author | Jeffrey Wilson |
| Pages | 753-759 |
Page 753
The law has not traditionally looked favorably upon individuals living together outside marriage. However, the law in this area has changed considerably in the past 40 years, and cohabitation has increased dramatically. In 1970, about 530,000 couples reportedly lived together outside marriage. This number increased to 1.6 million in 1980, 2.9 million in 1990, 4.2 million in 1998, and 5.5 million in 2000.
In some respects, unmarried cohabitation can be beneficial from a legal standpoint. Unmarried partners may define the terms of their relationship without being bound by marriage laws that can restrict the marriage relationship. When a relationship ends, unmarried cohabitants need not follow strict procedures to dissolve the living arrangement. Moreover, unmarried couples can avoid the so-called "marriage tax" in the Internal Revenue Code that provides a greater tax rate for unmarried couples than it does for two unmarried individuals (notwithstanding efforts to eliminate this penalty).
On the other hand, unmarried cohabitants do not enjoy the same rights as married individuals, particularly with respect to property acquired during a relationship. Marital property laws do not apply to unmarried couples, even in long-term relationships. Moreover, laws regarding distribution of property of one spouse to another at death do not apply to unmarried couples. Children of unmarried couples have traditionally not been afforded the same rights as children of married couples, though most of these laws have now been revised to avoid unfairness towards offspring.
A fairly recent trend among both heterosexual and homosexual couples who live together is to enter into contracts that provide rights to both parties that are similar to rights enjoyed by married couples. In fact, many family law experts now recommend that unmarried cohabitants enter into such arrangements. Further changes in the laws may also afford greater rights to unmarried partners who live together. However, such arrangements may be invalid in some states, particularly where the contract is based on the sexual relationship of the parties.
Page 754
Family laws related to marriage simply do not apply to unmarried couples. More specifically, marriage creates a legal status between two individuals that gives rise to certain rights to both parties and to the union generally. Unmarried cohabitants do not enjoy this status and do not enjoy many of the rights afforded to married couples. Thus, if a couple is married for two years, and a spouse dies, the other spouse is most likely entitled to receive property, insurance benefits, death benefits, etc., from the other spouse's estate. If an unmarried couple lives together for 20 years, and one partner dies, the other is not guaranteed any property or benefits.
Though many groups support legal reforms providing protection to unmarried cohabitants that would be analogous to laws governing marriage, very few such laws exist today. Unmarried cohabitants need to know what laws do exist in their state and cities and know what their options are regarding contractual agreements that may provide themselves rights that are analogous to marital rights.
Laws prohibiting cohabitation and sexual relations outside marriage were very common until about the1970s. Though most of these laws have been repealed or are no longer enforced, they still exist in some state statutes. Eight states still have laws prohibiting cohabitation, which is usually defined as two individuals living together as husband and wife without being legally married. Nine states prohibit fornication, which is usually defined as consensual sexual intercourse outside marriage. More than 15 states prohibit sodomy, which includes any "unnatural" sexual activity, such as anal or oral sex. Several of these statutes apply specifically to homosexual activity.
While most of these criminal laws are clearly antiquated, they are sometimes enforced. In the United States Supreme Court case of Bowers v. Hardwick in 1986, the court upheld the enforcement of a criminal statute prohibiting sodomy between two homosexual men. Criminal statutes proscribing private sexual activity do not violate the federal constitution under Bowers, though some state courts have held that similar statutes are unconstitutional under the relevant state constitutions.
A person living as an unmarried cohabitant with another might face some form of discrimination. For example, an employer may expressly forbid employees from living together outside marriage and may terminate the employment of an employee who does cohabit with someone else outside marriage. Such discrimination in employment is not generally forbidden, either under federal law or under the laws of most states. Some state cases have, however, upheld the rights of individuals' cohabiting outside wedlock.
Marital and community property laws govern the ownership of property acquired during a marriage. The characterization of property acquired by unmarried cohabitants is less clear. Some property acquired by unmarried couples may be owned jointly, but it may be difficult to divide such property when the relationship ends. Similarly, if one partner has debt problems, a creditor may seek to attach property owned jointly by both partners as if the partner owing the debt solely owned the property. Problems such as these are even more complicated if one partner dies without a will, since the surviving partner has no right to the other partner's property unless the property is devised to the surviving partner.
Children born out of wedlock have not traditionally enjoyed the same legal protections as children born in wedlock. Such...
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