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.