From Wedding Bells to Working Women: Unmasking the Sexism Resulting from 'Illicit Concubinage' in Louisiana's Jurisprudence

• Author: Brittanie Wagnon
• Position: J.D./D.C.L., 2016, Paul M. Hebert Law Center, Louisiana State University.
• Pages: 1383-1419

From Wedding Bells to Working Women: Unmasking

the Sexism Resulting from “Illicit Concubinage” in

Louisiana’s Jurisprudence

TABLE OF CONTENTS

Introduction ................................................................................ 1384

I. First Comes Love, Then Comes Marriage? ................................ 1386

A. The Explosive Growth of Cohabitation and Its

Clouded Origins ................................................................... 1386

B. Women’s Push for Cohabitation .......................................... 1389

II. Other Jurisdictions’ Responses to Cohabitation ......................... 1390

A. The American View of Cohabitation: Before and After ...... 1391

1. The Traditional Negative Status .................................... 1391

2. Inequity Caused by the Traditional View in

America Transformed the Law ...................................... 1393

B. Approaches Used by Multiple Jurisdictions......................... 1394

1. The Imposition of a Legal Status ................................... 1394

a. The “Not-So-Common” Law Marriage

Approach ................................................................. 1394

b. The ALI’s 2001 Chapter 6 Principles: A

Revival of Common Law Marriage?....................... 1395

c. Washington’s Unique “Committed Intimate

Relationship” Status ................................................ 1396

d. New Zealand’s Domestic Partnership Laws ........... 1397

2. The Marvin Contractual Approach ................................ 1398

3. France’s Blending of the Intermediate Status

and Contract Approach .................................................. 1399

III. Paramours, Concubines, and “Illicit Concubinage” in

Louisiana .................................................................................... 1400

A. Louisiana’s Harsh Treatment of Cohabitation ..................... 1401

B. The Eroded Rationale of Louisiana’s Negative

Status Approach ................................................................... 1404

1. Public Policy: The Alleged Immorality of

Concubinage .................................................................. 1405

2. Guardians of the Sanctity of Marriage........................... 1407

IV. Unmasking the Sexist Effects of Louisiana’s Laws

Regarding Concubinage ............................................................. 1409

A. The Effects of Louisiana’s Laws Regarding Concubinage .. 1409

1384 LOUISIANA LAW REVIEW [Vol. 76

B. Lack of Legal Grounds for the State’s Purported “Public

Policy” Condemning Cohabitation ...................................... 1413

C. Previous Failed Solutions to the Inequity in

Louisiana’s Law ................................................................... 1414

1. Rejection of Marvin ....................................................... 1415

2. The Rejection of Proposed Article 101 in the

Wake of the Repeal of Article 1481 .............................. 1415

3. Commentary Calling for Change ................................... 1417

4. Louisiana’s 2004 Defense of Marriage Amendment ..... 1417

D. The Solution: A Presumption of Equality ............................ 1418

Conclusion .................................................................................. 1419

INTRODUCTION

Cohabitation is the new normal.1 Today’s normal, however, can be

confusing to a generation that grew up with marriage as the only option

for romantic couples. But to today’s couples, cohabitation is either an

alternative to marriage or a stepping-stone to marriage. Contemporary

studies have shown that the majority of those who get married today are

wealthy white couples.2 Meanwhile, women of lower socioeconomic

status are less likely to get married.3 Instead, these women push for

cohabitation to protect their assets, and they have become the driving force

behind the shift from marriage to cohabitation.4

Historically, Louisiana stigmatized women who chose cohabitation,

referring to them as concubines and denying them legal rights.5 Beginning

in the 1970s, most states began to recognize and respond to the injustices

that the stigmatization of cohabitation created.6 For example, dissolution

Copyright 2016, by BRITTANIE WAGNON.

1. Pamela J. Smock, Cohabitation in the United States: An Appraisal of

Research Themes, Findings, and Implications, 26 ANN. REV. SOC. 1, 4–5 (2000);

see infra Part I.

2. See Smock, supra note 1, at 4–5; Marin Clarkberg, The Price of Partnering:

The Role of Economic Well-Being in Young Adults’ First Union Experiences, 77

SOC. FORCES 945, 947 (1999).

3. Clarkberg, supra note 2, at 947; Smock, supra note 1, at 4.

4. See infra Part I.B.

5. For an explanation of Louisiana’s historical view of concubinage, see

Succession of Bacot, 502 So. 2d 1118, 1129 (La. Ct. App. 1987) (citing

Succession of Filhiol, 44 So. 843 (La. 1907)).

6. See, e.g., Marvin v. Marvin, 557 P.2d 106 (Cal. 1976) (en banc) (allowing

a cohabiting woman to recover under contract theory to prevent inequity).

2016] COMMENT 1385

of a relationship by death or separation often left a woman destitute.7 To

correct this inequity, every other community property state in the United

States now provides a remedy for cohabitants to claim property rights upon

dissolution of the relationship.8 Overall, 46 states have created some sort

of contractual or status-based remedy for this inequity.9 In the midst of the

United States’ movement to accept cohabiting couples that has gained

traction and entrenched itself over the past 40 years, Louisiana’s

stubborn refusal to follow the rest of the country’s example is puzzling.

This Comment offers a solution to that puzzle, arguing that

Louisiana’s refusal to provide property rights for unmarried cohabitants

is the result of discrimination against some of the state’s neediest

citizens.10 Louisiana’s jurisprudence often provides unfair results to

women, and when accompanied by statistics showing that women are the

main advocates of cohabitation,11 Louisiana’s refusal to act appears

motivated by a desire to discriminate. This failure to change the law is a

thinly veiled attempt to retain the status quo of the past where marriage

was the only path for women to be successful. To correct the situation,

this Comment proposes a solution that is best aligned with Louisiana’s

needs—a presumption of an equal-sharing agreement between romantic

partners upon dissolution.

Part I demonstrates that the significant number of cohabiting couples

creates a need for the legislature to act, and also explores who engages in

cohabitation and why the practice has become so popular. Part II describes

the evolution of cohabitants’ rights in the American courts and legislatures.

This Part also surveys the various approaches in the United States, New

Zealand, and France to afford rights to cohabitants. Part III explains

Louisiana’s archaic views regarding unmarried cohabitation and why the

State chooses to cling to this reasoning. Part IV scrutinizes the sexist biases

in Louisiana’s jurisprudence and argues that Louisiana can no longer justify

discriminating against cohabitants. This Part also proposes a solution that

7. See id. at 109 (noting that the plaintiff agreed to stop working and be the

defendant’s housekeeper in return for his financial support).

8. Erez Aloni, Registering Relationships, 87 TUL. L. REV. 573, 587 (2013).

9. Id.

10. Even though marriage as an institution offers concrete benefits and

protections for many, the Louisiana Civil Code currently excludes from this

category not only unma rried heterosexual cohabitants, but al so homosexuals. LA.

CIV. CODE art. 89 (2014). See generally Obergefell v. Hodges, No. 14–556 (U.S.

2015) (holding that the Fourteenth Amendment’s Due Process and Equal

Protection clauses require a state to license a marriage between two people of the

same sex and to recognize a marriage between two people of the same sex when

their marriage was lawfully licensed and performed in another state).

11. See infra Part I.B.