THE MARITAL HABITUS.

• Date: 01 August 2022
• Author: Matsumura, Kaiponanea T.

ABSTRACT

The law on the books has recognized the right of cohabitants to create enforceable legal obligations with each other for half a century. Yet few seek to enforce such obligations, and their attempts almost never prevail. This article explores one possible explanation for the invisibility of their claims. Marriage is so deeply rooted in our societal consciousness that it embodies what sociologist Pierre Bourdieu has called a habitus, a "subjective but not individual system of internalized structures, schemes of perception, conception, and action common to all members of the same group or class. " A habitus takes the form of things to do or not to do, to say or not to say, determining what conduct is reasonable or unreasonable. The marital habitus is the framework through which people structure their personal relationships and comprehend all adult intimacy. It explains why courts that expressly embrace the right of intimate partners to create legal relations cannot see those relations when they are asked to recognize them. This article gathers evidence of the habitus at work in parties' legal arguments and in scholarly proposals to recognize nonmarital relationships. It then concludes by asking what, if anything, can be done to recognize valuable adult relationships beyond marriage.

TABLE OF CONTENTS I. INVISIBLE CLAIMS II. THE HABITUS III. MANIFESTATIONS OF THE MARITAL HABITUS A. Parties B. Scholars IV. LOOKING FORWARD INTRODUCTION

For decades, scholars and lawmakers have pondered the prospect of legal rights for adults in intimate relationships outside of marriage. (1) The topic has grown in importance as the number of people in nonmarital relationships has swelled to the tens of millions. (2) Most states have settled on a contract approach, under which partners can enter into enforceable agreements regarding their respective property rights and obligations. (3) A smaller handful of states have allowed partners in sufficiently marriage-like relationships to benefit from marital property rules. (4) Scholars have advanced even more ambitious proposals, none of which has yet been adopted, like treating couples in marriage-like relationships as "married in fact" (5) or long-term cohabitants "as though they were married." (6)

Despite these attempts at innovation, only a tiny sliver of nonmarital relationships is directly governed by the law. Although we know little about the number of disputes that are filed in courts whose dockets and decisions are not reported in easily searchable commercial databases, the small number of reported decisions (fewer than one hundred per year (7)) suggests that very few nonmarital relationships give rise to enforceable legal obligations.

In this article, I explore why nonmarital relationships have been rendered invisible in the law (8) and propose an answer. I suggest that marriage is so deeply rooted in our societal consciousness that it embodies what sociologist Pierre Bourdieu has called a habitus: a "subjective but not individual system of internalized structures, schemes of perception, conception, and action common to all members of the same group or class." (9) Marriage is not just a legal status that one chooses to enter; it is not just a collection of laws; it is not merely an outcome toward which the law channels people. It is the framework through which people structure their personal relationships and comprehend all adult intimacy.

The claim here is different than the conventional critique of marital supremacy, which accuses legal actors and the law more generally of propping up marriage to the detriment of other forms of intimacy. (10) Habitus runs deeper. It is largely invisible, depending upon the harmonization of collective experiences as well as their continual reinforcement. It takes the form of things to do or not to do, to say or not to say, determining what conduct is reasonable or unreasonable. It explains why courts that expressly embrace the right of intimate partners to create legal relations cannot see those relations when they are asked to recognize them.

To interrogate the claim, I examine two possible manifestations of marital habitus-induced blindness. First, I look at the arguments that parties have raised in contract disputes, showing that partners who bring contract claims based on domestic services articulate the value of those services as if performed in marriage. Parties (or their lawyers) lack the vocabulary to explain the exchange in any other way, predictably leading courts to question why parties who wanted marital rights would not formally marry. Second, I examine scholarly reform proposals to show how marriage structures assumptions about nonmarital obligations. Sometimes, the effect of marriage is obvious and explicit, as when a scholar proposes to extend marriage laws to similarly situated couples. But even attempts to propose new and different legal relations are moored in concepts like marital unity, marital vulnerability, and marital responsibility. Scholars therefore struggle to articulate how open-ended concepts like sharing or unjust enrichment should play out differently from what marriage would dictate.

I conclude the article by considering what it would take for members of the juridical field to comprehend adult relationships beyond the blinders of marriage. If a habitus functions as I have described, it threatens to circumscribe the very efforts to alter it. Yet a habitus is not impervious to challenge from within, given that it is the product of innumerable performances, which themselves reflect the constant renegotiation of social relationships and positions. I argue that looking to the experiences of those who cannot practically or legally claim the benefits of marriage--siblings; parents and their adult children; a sexuals; committed singles; people in consensually non-monogamous relationships; friends; those too economically insecure to marry; and the like--could provide the best hope of altering the marital habitus to better accommodate nonmarital relationships.

1. INVISIBLE CLAIMS

   Reviewing the landscape of cohabitant claims two decades ago, Ann Laquer Estin observed that the law was "not particularly generous[:] Only a small percentage of cohabitants will have even a possibility of legal recovery when their relationships end." (11) Despite the widespread adoption of rules recognizing cohabitants' right to contract following Marvin v. Marvin, (12) Estin noted that few decisions actually recognized claims to broadly redistribute property between cohabitants. (13) Instead, "[Remedies available to cohabitants are largely limited to untangling shared property interests and reimbursing extraordinary contributions made by one partner to the other's business or property interests." (14) Indeed, when the Marvin case was remanded, the trial court found that Lee Marvin had not impliedly agreed to provide for Michelle Marvin's financial needs for the rest of her life in exchange for her domestic services, and that Michelle had in fact been financially enriched during her time with Lee. (15)

   A recent study by Albertina Antognini confirms that not much has changed in the ensuing decades. In fact, the landscape may be bleaker than previously realized. Antognini analyzes the universe of cases involving express contracts between cohabitants and finds that even in these "easier" cases--easier in the sense that courts need not infer the terms of agreements from the parties' conduct--courts rarely award relief. (16) Of these 122 reported cases, courts have only enforced contracts in 42. (17)

   Antognini finds that courts in the vast majority of cases refuse to enforce express contracts for a several reasons. Even though Marvin instructs that only contracts that "rest upon a consideration of meretricious sexual services" are prohibited, (18) courts sometimes conclude that the exchange of property for the performance of household duties necessarily involves sexual consideration. (19) In Smith v. Carr, for example, the court held that the plaintiffs "services as a 'companion, homemaker, and social hostess'" were "inextricably intertwined with the sexual relationship." (20) While holding out the possibility that the same services might be consideration if the relationship involved "true cohabitation," the court viewed the consideration as primarily sexual because the plaintiff only lived with her partner '"at various times' for no longer than eleven months." (21) In other instances, Antognini points out that courts will characterize domestic services and companionship as inherently gratuitous behavior, not consideration for an enforceable agreement. (22)

   Of course, some courts do enforce contracts between cohabitants. Antognini finds that most of these cases involve a different type of exchange: claims "pertaining exclusively to finances contributed, or property owned, during the relationship." (23) Antognini points to Maddali v. Haverkamp, (24) in which the court held that rather than alleging an unenforceable exchange based on "love and affection," the plaintiff pointed to a concrete promise to repay her the money she spent in maintaining and renovating a house titled in her former cohabitant's name. (25) Echoing Estin's findings from decades ago, Antognini unearths numerous cases in which courts recognize claims based on property rather than services. (26)

   In a recent study of cases brought by cohabitants based on the theory of implied partnership or joint venture, Courtney Joslin has discovered a similar dynamic at work. (27) Courts refuse to imply a financial partnership based on one partner's provision of domestic services but "are generally open to applying the usual market rules to exchanges that are not family-like in nature." (28) Of course, this is small comfort to those whose contributions consist primarily of domestic labor. For them, any right to contract is an empty one. (29)

   What explains the widespread...