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

• Author: John G. Culhane
• Date: 01 January 2020
• Published date: 01 January 2020
• DOI: http://doi.org/10.1111/fcre.12460

COHABITATION, REGISTRATION, AND RELIANCE: CREATING

A COMPREHENSIVE AND JUST SCHEME FOR PROTECTING

THE INTERESTS OF COUPLES’REAL RELATIONSHIPS

John G. Culhane

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 relation-

ship. 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.

Key Points for the Family Court Community:

Advising clients on their rights upon the dissolution of their nonmarital relationships is difficult, because in many

states the law is unclear (or unsupportive of the economically weaker party).

Courts and legislatures should recognize the rights of unmarried cohabitants, both by granting legal rights to cohabi-

tants and by creating a new registration status that will clearly spell out the rights and obligations the parties wish to

grant (or impose upon) each other.

This registration status should take its inspiration from Colorado’s designated beneficiary law, but can improve on

that law by allowing consenting adults to enter into more than one such relationship at the same time, provided the

rights and obligations being conferred are not inconsistent.

This dual approach should better protect the reasonable reliance interests of couples, provide clarity and guidance for

family law practitioners, and give courts the tools they need to reach a just resolution whenrelationships end.

Keywords: Agreement; Cohabitation; Designated Beneficiary;Dissolution; Multiple; Reliance.

I. INTRODUCTION

The institution of marriage needs to shed at least some of the extreme privilege it enjoys over

other intimate committed relationships.

1

Conversely, recognition of those other relationships should

entail some level of governmental support, or at least a right to judicial redress for partners’defeated

expectations, based on reasonable reliance created during the duration of the relationship. But the

recommendations on the best way(s) forward on complex questions such as property division and

support obligations splinter, often chaotically. The issues can seem intractable, in part because no

recommendation for shrinking the distance between marriage and other important personal relation-

ships will seem fair in all cases; in fact, it is hard even to advance ideas that do not contain at least

some internal inconsistency. That complexity is understandable, because it is difficult even to agree

on how best to frame the issue. Should we be using marriage as the starting point for evaluating

other proposals? Why not look at relationships more broadly, focusing on the ways in which people

Corresponding: johnculhane@widener.edu

FAMILY COURT REVIEW, Vol. 58 No. 1, January 2020 145–156

© 2020 Association of Family and Conciliation Courts