Evidentiary Privileges for Cohabiting Parents: Protecting Children Inside and Outside of Marriage

Author:Mark Glover
Position:J.D., magna cum laude, Boston University School of Law, 2008.

Introduction. I. Legal Consequences Of Unmarried Cohabitation. A. The Traditional Legal Treatment of Unmarried Cohabitants. B. Recent Recognition of Limited Legal Consequences of Unmarried Cohabitation. 1. Property Rights. 2. Domestic Violence. 3. Housing Discrimination. II. The Marital Privileges. A. The Spousal Testimonial Privilege. B. The Marital Communication Privilege. C. A Closer Look at... (see full summary)


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Unmarried cohabitants have long endured the stigma that accompanies a lifestyle that society deems immoral. Couples who choose to live together out of wedlock traditionally have been ostracized for "living in sin"1 and have been characterized as engaging in "deviant behavior."2 Society's traditional disapproval of this behavior was reflected in the laws of most states, which, prior to the 1960s, criminalized unmarried cohabitation.3 However, "[s]ocial mores regarding cohabitation between unmarried parties have changed dramatically in recent years."4 The once depraved act of unmarried cohabitation has largely lost its moral disapproval.5 Page 752

Paralleling this shift in society's attitude toward unmarried cohabitation, most states have repealed their anti-cohabitation statutes.6 Though a small number of states still have these laws on the books, prosecutors rarely enforce them.7 When unmarried couples are charged with criminal cohabitation, these statutes generally are not used to interfere with otherwise law abiding couples, but are invoked to intervene in extraordinary situations, such as "to force a violent cohabitor to leave the home, or to coerce an unmarried cohabiting father to pay child support."8

Society's gradual acceptance of unmarried cohabitation has been accompanied by a dramatic increase in the number of Americans cohabiting outside of marriage.9 In 1960, approximately 440,000 unmarried American couples lived together.10 By 1990 that number had increased to 2.85 million, and at the beginning of the new millennium 4.9 million unmarried couples were cohabiting.11 This ten-fold increase in the number of cohabiting unmarried couples has raised the percentage of U.S. households composed of unmarried cohabitants to 4.5% in 2000, which is up from the 0.8% mark of 1960.12 Further increases in cohabitation rates are expected in the coming years.13

The decline of societal condemnation and the near universal decriminalization by state legislatures have not brought about complete legal equality between marriage and unmarried cohabitation.14 Unmarried cohabitants do not enjoy many of the benefits bestowed upon married couples by courts and legislatures.15 The primary rationale for not "establishing an Page 753 informlal egal status for" unmarried cohabitants, which would provide accompanying legal benefits, is that doing so would "undermine marriage as a key social, cultural and legal institution, to the detriment of society."16

One area in which the law continues to treat unmarried cohabitants differently than married couples is the law of evidence. In certain circumstances, a spouse may refuse to testify against the other spouse or to reveal information concerning confidential marital communications at trial.17 However, in no jurisdiction are unmarried cohabitants afforded the same evidentiary privileges.18Consider for example the trial of Richard Lane.19 Lane had lived together with his girlfriend, Faye, for six years when Faye was called to testify against Lane in his prosecution for first-degree murder.20 Despite the fact that the couple had two children together and had portrayed themselves to the public as husband and wife, the court did not allow Faye to invoke the marital privileges because the couple had never formally married.21 In part because of Faye's testimony, Lane was convicted and sentenced to life imprisonment.22

The murder trial of A.J. Moore provides a contrasting example.23 On the eve of trial, Moore married Susie Jones, the only eye-witness to the homicide.24 Though the matrimony was only hours old, the court ruled that the prosecution could not compel Jones to testify against her husband.25 The court explained:

It makes no difference at what time the relation of husband and wife begins . . . . When the marriage ceremony is performed, no matter what the motive was or may be, the witness thenceforward becomes the lawful wife of the defendant, and is prohibited . . . from testifying against her husband.26 Page 754

This Article argues that the law should continue to expand the benefits available to couples living together out of wedlock so that both of the aforementioned couples would be protected by evidentiary privileges.27 Specifically, the Article proposes a new evidentiary privilege that would protect unmarried, cohabiting parents. Under this proposal, an unmarried couple would enjoy the benefits of the marital privileges if they share a home with their child. This cohabiting-parent privilege would further the policies of family preservation and child protection, both of which are principal policy justifications of the marital privileges. Furthermore, providing cohabiting parents evidentiary privileges is less susceptible to the traditional criticism of expanded legal benefits for unmarried cohabitants because the cohabiting-parent privilege would not reduce a couple's incentive to marry.

This Article proceeds in four parts. Part I describes the traditional legal treatment of unmarried cohabitation and the recent recognition of limited legal benefits for unmarried couples. Part II explains the evidentiary privileges available to married couples and explores the rationales for providing marriage the benefit of these privileges. Part III then argues in favor of a new privilege for unmarried, cohabiting parents. Finally, Part IV compares this proposal for a cohabiting-parent privilege to recent proposals for evidentiary privileges that would apply to all unmarried cohabitants.

I Legal Consequences Of Unmarried Cohabitation
A The Traditional Legal Treatment of Unmarried Cohabitants

Traditionally, unmarried cohabitants not only faced moral condemnation from the public, but also encountered legal disapproval from the courts. Even after most states repealed their anti-cohabitation statutes, unmarried couples living together possessed "a 'negative status' in the law."28 This negative status is best exemplified by the refusal of courts to recognize contract right claims between these unmarried couples. Contracts that would have been valid between roommates not engaged in a sexual relationship were deemed invalid and unenforceable between unmarried cohabitants because the courts "view[ed] . . . [the] Page 755 relationship, and therefore the contract between [the parties], [as] immoral and illegal."29

Not only does the law generally treat relationships between unmarried cohabitants differently than relationships between other unmarried persons, but it also treats unmarried cohabitants differently than married couples. Unlike the relationship between married partners, "the relationship of unmarried cohabitants is not, as a general rule, recognized as a legally significant family status. As a result no benefits or obligations, either between the partners or vis-à-vis third parties and the government, attach to the relationship."30 In contrast, the law confers benefits upon the marital relationship in many contexts, including taxation, inheritance, tort law, criminal law, social welfare, adoption, and child custody.31

B Recent Recognition of Limited Legal Consequences of Unmarried Cohabitation

Though the law has been resistant to confer the consequences of marriage upon unmarried cohabitants, over the course of the past thirty years, courts in a few states have gradually extended some legal benefits to non-marital relationships. Areas in which courts have extended legal consequences to unmarried cohabitation include property rights, domestic violence, and housing discrimination.

1. Property Rights

The case of Marvin v. Marvin involved a seven-year relationship during which the cohabiting parties never married.32When the relationship ended, the defendant forced the plaintiff to Page 756 move out and refused to continue providing financial support.33The plaintiff sued for half of the property that the couple acquired over the course of the relationship, claiming that the parties "entered into an oral agreement" in which they agreed to "combine their efforts and earnings" while they lived together and also agreed to "share equally any and all property accumulated as a result of their efforts . . . ."34

Diverging from the traditional judicial treatment of agreements between unmarried cohabitants, the California Supreme Court held that "[t]he fact that a man and woman live together without marriage, and engage in a sexual relationship, does not in itself invalidate agreements between them relating to their earnings, property, or expenses."35 The only restriction the court placed on these agreements was that the contract could not be based upon "a consideration of meretricious sexual services."36 Therefore...

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