Estop in the name of love: a case for constructive marriage in Virginia.

• Jurisdiction: United States
• Author: Scott, Andrew W.
• Date: 01 December 2007

TABLE OF CONTENTS INTRODUCTION I. THE STATUS OF COHABITATION AND MARRIAGE A. Defining Marriage B. If It Looks Like a Duck and Walks Like a Duck C. "Let's Just Live Together" D. Which Came First, the Chicken or the Bad Eggs? E. When It's Over II. REMEDIES A. Marvin Remedies B. Domestic Partnerships C. Common Law Marriage III. CONSTRUCTIVE MARRIAGE IN VIRGINIA A. The Legacy of Offield v. Davis B. Virginia's Take on Cohabitation C. Current Virginia Recognition of Common Law Marriage D. Creating the Ties that Bind 1. Equitable Estoppel 2. Doctrine of Implied Partnership E. Implications for Same-sex Relationships CONCLUSION INTRODUCTION

"Without some supervision ... disputes are won not by justice but by strength. Although imperfect by any standard, the centuries' accretion of marriage laws are, today, society's painstakingly hammered consensus on how a couple should justly be treated."--E.J. Graft, What is Marriage For? (1)

In 1865, the Civil War ended in Virginia; in 2006, the Civil Union War in Virginia met with a similar fate. On November 7, 2006, the Commonwealth of Virginia amended its constitution with, among other things, the following provision: (2)

This Commonwealth and its political subdivisions shall not create or recognize a legal status for relationships of unmarried individuals that intends to approximate the design, qualities, significance, or effects of marriage. Nor shall this Commonwealth or its political subdivisions create or recognize another union, partnership, or other legal status to which is assigned the rights, benefits, obligations, qualities, or effects of marriage. (3) The amendment is sweeping, to say the least. Not only does it prohibit the legal recognition of same-sex marriage and civil unions, it denies legal status to any couples involved in long-term non-marital cohabitation. Upon its passage, the amendment's supporters declared that the people of Virginia had spoken, and the message was clear: leave marriage alone. (4)

Such a sentiment is understandable. Marriage is the foundational economic, social, and religious unit in American culture. The U.S. Supreme Court has declared that "[m]arriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival." (5) Marriage is of such significance that the Court has permitted extensive regulation of the institution under the state's police power. (6) The state's interests in marriage are varied and substantial and include "keeping records, promoting health, and preventing child or incestuous marriages," as well as providing a safe, healthy, and nurturing environment for children and families; facilitating private networks of mutual support and obligation; and supporting public morality. (7) Married people live longer, (8) make more money, (9) have better-adjusted children, (10) and have a higher level of "subjective well-being" (11) than their nonmarried counterparts. In this way marriage is an important and beneficial institution for both couples and for society at large. Virginia's conclusion that it wants to protect the working model for such a successful, socially valuable, time-proven entity is hardly front page news. (12)

From the standpoint of a state that clearly has articulated a public policy in favor of marriage, then, the relevant problem is not that too many people want to enter into marriage; rather, the problem is that Virginia is full of couples who cohabit but are not married. (13) According to the most recent U.S. Census estimate, there were a minimum of 128,363 unmarried-partner households in Virginia. (14) This translates to over 256,000 Virginians living in nonmarital cohabitation as of 2006. Statistics show that "[a]bout half of Americans from age thirty-five to thirty-nine have cohabited" at some point. (15) If the aim of the new amendment to the Virginia Constitution is to encourage unmarried cohabiters to marry because they cannot hope to receive legal recognition for their less-than-marriage-but-more-than-just-dating relationships, then the new amendment may have some limited effect. Increased social acceptance of cohabitation and a general aversion to marital commitment among cohabiters, (16) however, will strongly militate against that rather indirect incentive.

This Note will argue that, in furtherance of its legitimate interest in regulating marriage, Virginia should adopt a form of common law marriage by estoppel known as "constructive marriage." (17) Because the extensive data on the benefits of marriage are available almost exclusively for male-female couples, and, more significantly, because same-sex marriage is now affirmatively banned by the Virginia Constitution, this Note will largely focus on heterosexual cohabitation and marriage. (18) Part I will explain why nonmarital cohabitation should be strongly disfavored as a matter of policy. Part II will suggest that adoption of the doctrine of constructive marriage would be a timely, practical, and beneficial public policy for both the people and the State of Virginia. Part III will explore how constructive marriage comports with Virginia's constitutional, statutory, and common law, as well as the explicit and implicit public policy aims of the Commonwealth.

1. THE STATUS OF COHABITATION AND MARRIAGE

   1. Defining Marriage

      Everyone has a frame of reference for marriage; it has been defined, refined, and practiced by American society for hundreds of years. Marriage is "surrounded by legal, social, and cultural beliefs about the broad contours of the relationship" that inform the married and unmarried alike. (19) In Virginia, marriage has a simple statutory definition. By written law, a marriage only requires a man and a woman to obtain a license and participate in a solemnization ceremony. (20) The courts have added to these requirements by declaring that "sexual intercourse is a necessary act to consummate any marriage." (21) Without sex, no marriage exists and the relationship is a legal "nullity." (22)

      The law of marriage in Virginia, however, is more complicated than the basic entry requirements would suggest. Both statutory and judge-made law in Virginia focus considerable energy on the importance of the relationship after the entry requirements of contract and coitus. A married couple must live in "matrimonial cohabitation" to be fully engaged in marriage. According to the Virginia Supreme Court, '"matrimonial cohabitation' consists of more than sexual relations. It also imports the continuing condition of living together and carrying out the mutual responsibilities of the marital relationship." (23) The Virginia Code of Domestic Relations makes clear that matrimonial cohabitation is the relationship's essence: willful desertion of one's spouse is a crime; (24) and abandonment is grounds for divorce for the "innocent party" who has been deserted. (25) Even in the case of no-fault divorce, the husband and wife must "have lived separate and apart without any cohabitation and without interruption for one year" in order to break the bonds of matrimony. (26) Additionally, matrimonial cohabitation is actually an affirmative defense to some grounds for divorce on the theory of condonation. (27)

      The law's emphasis on the unwritten requirement of matrimonial cohabitation means that court inquiries into a marriage will invariably involve questions about the parties' conduct in the marriage, rather than being confined to a mere investigation of whether formal entry requirements were satisfied. (28) To that end, defects in the formal requirements of license or ceremony are not fatal to a marriage; (29) yet a couple's post-wedding conduct--for example, their failure to engage in matrimonial cohabitation--could be the undoing of their special legal status as "married." (30)

      Marriage, then, from Virginia's perspective, is more than a mere license, more than a ceremony, and more than just sex. Marriage is an ongoing filial relationship with mutual responsibilities for the parties involved. (31) It is in exchange for this conduct, not the mere agreement articulated at the wedding ceremony, that the Commonwealth of Virginia truly finds a marriage. In this way, marriage in Virginia is viewed as a status, not a mere contract. (32)

      As a status, marriage is an institution necessarily subject to close public regulation. The married couple must conform their behavior to the status's norms; the individuals involved do not control the terms of the relationship. (33) This conforming effect causes the marital relationship to be actually constructive of the participants' identities. (34) By contrast, if marriage were viewed as a mere contract between two parties, then the parties could define every aspect of the relationship without regard to the state's interests. (35) Marriage, as a contract, would be constructive only to the extent that the parties would be subject to the terms that they privately negotiated, which they could modify at any time. As a private contract, marriage qua a social institution would lose much of its meaning, as infinite variations on the parameters of that relationship would emerge.

      Under the marriage-as-status model, conforming conduct is the relationship's most important aspect. Consider the case of a man and a woman who privately adopt every aspect of a marriage but who do not obtain a license or participate in a ceremony. They cohabit, have children, pool their assets, and divide domestic responsibilities. They take care of each other at home and present themselves as a solid family unit to their friends and relatives. (36) Without regard to procedural formalities, objectively they have entered into the status of marriage. What sense would it make for a state that views marriage as a status to exclude this man and woman, who have conformed their conduct to the status, from legal recognition? Why deny the couple the title, benefits, and legal sanction of marriage that it affords identically situated...