Marry Me, Bill: Should Cohabitation Be the (Legal) Default Option?

• Author: Margaret F. Brinig; Steven L. Nock
• Position: William G. Hammond Professor of Law, College of Law, University of Iowa
• Pages: 403-442

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William G. Hammond Professor of Law, College of Law, University of Iowa, and member of the New Jersey, Washington, D.C., Virginia, and Iowa bars. Ph.D., George Mason University, 1994; J.D., Seton Hall University, 1973; B.A., Duke University, 1970.

Professor of Sociology, University of Virginia. Ph.D., 1976, Sociology with Distinction, University of Massachusetts, Amherst; M.A., 1975, Sociology, University of Massachusetts, Amherst; B.A., Sociology and Psychology, University of Richmond, 1972.

Bill, I love you so, I always will, I look at you and see the passion eyes of May. Oh, but am I ever gonna see my wedding day?

Oh, I was on your side, Bill, when you were losin'. I'd never scheme or lie Bill, there's been no foolin'. But kisses and love won't carry me 'til you marry me, Bill . . .

"Wedding Bell Blues," by Laura Nyro

Recorded by The 5th Dimension

Introduction

Are cohabitation and marriage similar enough to warrant similar legal treatment? Earlier public reports on cohabitation have focused on the question of whether cohabitation before marriage increases or decreases the divorce rate.¹

But increasingly cohabitation is being proposed not as a testing ground for marriage, but as a functional substitute for it. The trend in family law and scholarship in Europe and Canada is to treat married and cohabiting couples similarly, or even identically.²

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In this country, the American Law Institute [ALI] recently proposed that, at least when it comes to the law of dissolution, couples who have been living together for a substantial period of time should be treated the same as married couples.³ The ALI recommendations carry particularly intellectual weight, given they are the product of ten years of study by one of the most influential and mainstream voices on legal reform.

These legal and intellectual trends no doubt reflect in part the increasing prevalence of cohabiting couples including cohabiting families. Our best evidence (from 1991) indicates that twelve percent of cohabiting couples have a biological child together.⁴ Births to cohabiting women now account for thirty-nine percent of all births to unmarried women.⁵

How will "institutionalizing" cohabitation, or treating cohabiting couples as if they were married, affect the couple, their children, and the well-being of marriage? These are the questions that need to be asked and answered, before courts, state legislators, policymakers, and scholars embrace legal proposals to treat cohabitation as a form of marriage.

Should law and social policy actively support the cohabitation option and if so, how? This could be accomplished by removing barriers to it. These might include laws against fornication,⁶ sodomy,⁷ Page 405 or cohabitation⁸ and prescribing remaining legal differences in children's treatment based on their parents' marital state.⁹

Courts and legislatures in some jurisdictions have taken more affirmative actions to institutionalize and support cohabitation including establishing legal principles of "non-discrimination" between married and cohabiting couples and equalizing government benefits for formal and informal unions.¹⁰ Government could remove Page 406 barriers to cohabitation for single mothers such as "man-in-the- house" welfare rules.¹¹

The most radical view, espoused by some academics,¹² would abolish marriage as a legal institution (although it could of course remain a religious practice). In this view, the law should treat all family forms the same. The move towards recognizing same-sex marriage in Massachusetts has created surprising support for this view from some advocates of the traditional legal definition of marriage. Douglas Kmiec and Mark Scarberry of Pepperdine University recently urged that Massachusetts "temporarily get out of the new marriage business entirely," rather than offer same-sex couples marriage licenses.¹³

This essay evaluates (a) the weight of social science evidence on the extent to which, and the condition under which, cohabitation is the functional equivalent of marriage (b) the mechanisms, from a law and economics perspective, through which formal recognition of a relationship as a marriage may boost well-being, and (c) the likely consequences of blurring the legal distinction between formal and informal unions, as the ALI proposes.

Generally, we see too many problems with cohabitation defined as an alternative to marriage to believe that law and social policy Page 407 should actively support this emerging family form.¹⁴ Looking at the weight of social science evidence on marriage and cohabitation, this paper suggests what we believe is a middle ground: law and public policy should distinguish between cohabitation as a prelude to marriage (or a courtship strategy) and cohabitation as an alternative to marriage. The evidence, we suggest, points to many fewer problems with the former than the latter.¹⁵

I The Fuzzy Meaning Of Cohabitation

Modern couples carry many hopes for the informal relationship. When they move in together, they may be holding a number of different expectations (and may differ even among themselves about the meaning of this step). Part of the reason we will argue for restraint in supporting cohabiting relationships when marriage is possible stems simply from this lack of individual and social meaning. Because we mean different things by cohabiting, there can be no community support through ritual.¹⁶ Thus, "[c]ohabitation is an incomplete institution. No matter how widespread the practice, nonmarital unions are not yet governed by strong consensual norms or formal laws."¹⁷ Couples may not even see the importance of the step they take in "just living together."¹⁸ One or both members of a cohabiting couple may even cohabit (rather than marry) in order to Page 408 side-step difficult disagreements about the meaning and future of their relationship.

The lack of common definition of the term, either culturally or empirically, also makes study of cohabitation difficult. How does one phrase a survey question that would get at the complexity of informal intimate unions (especially since perceptions may change with time)? Some individuals who live together undoubtedly see cohabitation as an alternative to marriage (perhaps because they cannot marry; or sometimes because they don't see the need for marrying, and sometimes because they see an overwhelming dark side to the institution of marriage itself). In some couples, one or both partners may see cohabitation as a prelude to marriage. One or both may wish to cohabit simply because it is a convenient way to live until the wedding or because, like the transition from dating to going steady to "getting pinned" to engagement, living together seems another stage in a deepening relationship.¹⁹ Finally, a person may cohabit to test the relationship: Can I live with this partner without squabbling about cleanliness or sharing household chores?²⁰Will we still find each other sexually attractive lounging in threadbare gym clothes? Can we really spend all our leisure time together without being bored of one another?

II Is Cohabitation The Functional Equivalent Of Marriage? Evidence From The Social Sciences

However, we do know some empirical facts about cohabiting couples as a result of research conducted since the mid 1980s. First, there are growing proportions of them, particularly among African Americans.²¹ Second, the relationships themselves last a shorter time than marriage, even if there are children.²² Third, cohabitation Page 409 followed by marriage (particularly when the couple cohabits without being engaged) leads to less stable marriages than marriages not preceded by living together.²³ Fourth, cohabiting couples experience a larger incidence of domestic violence than do married ones.²⁴ The Justice Department reports that "those who never married became violent crime victims at more than four times the rate of married persons."²⁵ Compared to married couples of the same duration (i.e., couples who have been together for the same length of time) those in informal (cohabiting) unions are less committed to their partnership (they see fewer costs should the relationship end), and report poorer quality relationships with one another and with parents.²⁶

Scholars debate whether to view such findings as healthy adaptations to the constantly changing institution of marriage²⁷ or a sign of social decline and growing impermanence in the intimate lives of children and adults.²⁸ Still, there is little disagreement that cohabitation is still an informal union ungoverned by strong cultural beliefs and presumptions. As such, it is not a social institution; marriage is. In sharp contrast to cohabitation, marriage is surrounded by legal, social, and cultural beliefs about the broad contours of the relationship. This is the defining difference between legal marriage and informal cohabitation.²⁹ Thus, not only do scholars have difficulty pinning down the meaning of cohabitation, but (often) so do cohabitors themselves.

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The cohabiting relationship itself is qualitatively different from marriage³⁰ (This may be for some couples exactly what they wanted: an alternative to marriage.). Couples who cohabit, though they may boast of the strength of their love, as the song tells us,³¹ express less interdependence than typical married couples.³² The strong health effects seen by married couples-especially men, though women, too-are not as pronounced.³³ Sex is reportedly not as good, on average.³⁴...