Marriage, cohabitation, and same-sex marriage.

• Author: Dnes, Antony W.

In this article, I explore some important limits to freedom imposed by family law and contribute to the recent debate about cohabitation and marriage. In particular, I consider a very heated topic at present internationally: Does the extension of marriage fights to homosexual cohabitants have any merit? To answer this question, I inquire into the relationship between marriage and cohabitation. Marriage represents a standard contract into which heterosexuals may opt, although increasingly they avoid doing so; homosexual couples, along with several other groups, such as nonintimate heterosexual cohabitants, are at present commonly prohibited from opting in. Following an examination of marriage as a special case of intimate cohabitation, I conclude at least in a qualified way that excluding homosexuals may be functional rather than discriminatory. I also consider the impact of changing marital law on heterosexuals. As Allen (2006) has pointed out, the nature of marriage is not accidental, but provides certain safeguards for the married, and the alteration of marital law to include new groups is likely to affect established groups. So the main question is whether marriage can be of practical use to same-sex couples. In the course of answering this question, I comment on the current international fashion of increasing the obligations of unmarried intimate cohabitants, which seems to be developing in parallel with the promotion of same-sex marriage and which also has implications for personal autonomy.

Some background information on international trends is helpful at the outset. Most U.S. states, including Connecticut and California, have attempted to declare unconstitutional the ban on homosexual marriage, which is reinforced federally by the Protection of Marriage Act. President George W. Bush has also suggested an amendment to the U.S. Constitution that would stipulate that marriage is a social status reserved for heterosexuals. Such an amendment would not imply, however, that weaker, domestic-partnership laws would be repealed. In Europe, most European Union (EU) states have or are contemplating laws that treat domestic partners more or less the same as married persons in key areas such as property rights and pensions. Some countries, notably the Netherlands, claim that such legal status constitutes a form of gay marriage. (1) Canada, however, not the EU, arguably has the distinction of being first to introduce same-sex marriage, following Halpern v. Toronto City (Ontario Appeal Court 276 [2003]), a successful challenge of the restriction of marriage to heterosexuals. (2) An issue that often surfaces in considering the international movement toward widening marriage is whether the restriction of within-marriage or postdissolution rights and obligations to one rigid form of marriage contract is oppressive or purposeful. (3) Because extension of marriage-like structures to homosexuals tends to go hand in hand with creation of marriage-like obligations between heterosexual unmarried intimate cohabitants, it is best to consider wider issues concerning cohabitation in thinking about gay marriage. Pressures to change marriage may also have arisen because traditional forms no longer fit well. If so, reformed, obligated cohabitation may become a new, dominant form of marriage. This possibility is consistent with the aims of the U.S. marriage-covenant movement, which seeks to preserve traditional hard-to-dissolve marriage for those who want it.

In asking whether any useful purpose might be served by extending marriage rights to homosexuals or by increasing the obligations between cohabitants more generally defined, we are contemplating a movement in the boundary of marriage law. This boundary has moved on previous occasions in many jurisdictions, notably in relation to consanguinity and the remarriage of divorcees. The boundary also clearly differs between jurisdictions: consider the difficulty internationally of recognizing polygamous marriages formed in Islamic jurisdictions. (4) In considering whether a boundary movement, in particular one that favors homosexuals, ought to be made, we must consider the purpose of marriage more generally and the nature of unmarried intimate cohabitation.

Here, I briefly examine first the current legal status of marriage, compared with unmarried cohabitation, using examples from common-law jurisdictions. I then pay considerable attention to what I call the "life-profile" theory of marriage (Cohen 1987, 2002), which suggests that traditional marriage protects economically vulnerable spouses, in particular childbearing women, from a form of exploitation. Does homosexual cohabitation require similar protection? Does such cohabitation somehow create dependency? More generally, what, if anything, is wrong with nonobligated cohabitation?

The Contrasting Legal Position of Cohabitants and Spouses

Homosexual cohabitation is legally a special case of heterosexual cohabitation or even of nonintimate cohabitation. Whereas the family court, which has a degree of discretion in arranging property matters, traditionally governs the property rights and marital obligations of married couples, contract principles usually govern the property rights of intimate and nonintimate cohabitants. In the event of a marriage dissolution or a dispute concerning support obligations within the marriage, for example, a family court may exercise discretion in reallocating assets or in interpreting traditional rules governing marital obligations. (5) This status-driven, discretionary exercise of court powers is typically lacking in the governance of cohabitation relationships. Most common-law jurisdictions have a "hard case" decision, such as California's Marvin v. Marvin (122 Cal. Rptr. 555 [App. 1981]), ruling that what happens to cohabitants depends crucially on what they have agreed. (6)

In the past, "common-law marriage" could be established by long cohabitation that creates a presumption that the parties had married. This possibility was abolished for the most part from the eighteenth century onward across the common-law jurisdictions, with only a few exceptions remaining (Montana, for example). This abolition was intended to encourage more clearly defined marriage, which was often considered at the time to be in the interests of women. The dominant decline of common-law marriage contributed to the legal separation of cohabitation and marriage.

Canada, Australia, and New Zealand have eroded the traditional position by allowing some divorcelike settling up following cohabitant break up, and there is currently renewed interest in developing such an approach in the United States (see Ellman 2001, discussing proposals by the American Law Institute [ALI]) and the United Kingdom (Law Commission 2006). Both of the latter two countries seem to be contemplating the introduction of a form of "marriage lite" for currently unmarried intimate cohabitants. Such systems have existed for some time in continental European countries, usually as an opt-in for cohabitants. The ALI and the English Law Commission are considering the introduction of default obligations on separation from which parties would need to opt out, a status view of rights that contrasts with the current contractual position of cohabitants. The key feature of the extension would introduce the practices of a divorce court in settling up over property, rather than allowing property rights to stand where they have arisen by work, inheritance, purchase, resulting and implicit trusts, or proprietary estoppel. (7) The pressure for marriage-like obligations for heterosexual cohabitants in England explicitly developed during enactment of the civil-partnership law for homosexuals: questions were raised in Parliament concerning the possibility of "doing something" to protect economically weaker heterosexual cohabitants.

The ALI's Principles of the Law of Family Dissolution (2001), which would effectively treat intimate cohabitation as a form of marriage, does not apply to homosexual cohabitants. Section 5, on former spouses, and section 6, on cohabitants, emphasize several status-linked ideas. Cohabitation is to be assessed according to the extent to which it approximates marriage; ancillary relief follows a formulaic approach, and there is a strong presumption of equal property division (described by Ellman [2000], the chief reporter, as an irrebuttable presumption in most cases). The ALI is clearly focusing on the creation of a form of "marriage lite" for heterosexuals, a return to court-governed common-law marriage, but without extension to same-sex couples and subject to opting out via cohabitation agreements.

In the United Kingdom, recent proposals to allow family courts to divide intimate cohabitants' property on breakup of the relationship would apply to both heterosexual and homosexual couples (Law Commission 2006). The scheme also admits the possibility of informed opting out by means of a cohabitation agreement. Opting out would return the parties to a Marvin-like contracting status (the English hard case is Burns), (8) albeit one that the courts might still review in some circumstances. In the United Kingdom, as in the United States, the traditional emphasis on private-property rights has affected all cohabitants regardless of sexual preferences.

Cohabitants' legal position has already been altered in recent years by changes in the rules of organizations such as pension schemes and housing associations and by the civil and domestic-partnership laws introduced for "those who cannot marry," mostly gays, in many jurisdictions in the United States and elsewhere. The new rules typically allow cohabitants, including same-sex couples, to capture some of the advantages flowing from...