Unbundling marriage law

• Published date: 01 October 2024
• Author: Shahar Lifshitz
• Date: 01 October 2024
• DOI: http://doi.org/10.1111/fcre.12820

ORIGINAL ARTICLE

Unbundling marriage law

Shahar Lifshitz

Bar-Ilan University, Ramat Gan, Israel

Correspondence

Shahar Lifshitz, Bar-Ilan University, Ramat

Gan, Israel.

Email: shahar.lifshitz@biu.ac.il

Abstract

This article illuminates the legal regulation of the economic

rights of non-marital partners at separation or death. Cur-

rent approaches have typically fallen into two categories:

one advocating for the separation of legal regimes based on

formal status, treating cohabitant partners as strangers, and

the other taking a functional approach, treating cohabitation

and marriage as substantively identical. However, both

approaches fail to offer a coherent alternative for regulating

cohabitation. This article proposes a novel third option –the

institutional, autonomy-based, pluralist model. The pluralist

model acknowledges the legal commitment between cohab-

itants while carefully distinguishing the legal regulation of

cohabitation from that of marriage. Unlike prevailing models

that offer a “package deal,”the pluralist model selectively

applies only suitable components of marriage law to non-

marital relationships, considering thoughtful criteria for their

applicability and ensuring a nuanced approach. The pluralist

model offers a middle ground between treating cohabitants

as strangers and treating them as married for purposes of

regulating marital property, spousal support, and inheri-

tance. Ultimately, it provides a framework that considers

the complexities of non-married relationships while

maintaining a desirable level of legal clarity.

DOI: 10.1111/fcre.12820

This is an open access article under the terms of the Creative Commons Attribution-NonCommercial-NoDerivs License, which

permits use and distribution in any medium, provided the original work is properly cited, the use is non-commercial and no

modifications or adaptations are made.

© 2024 The Author(s). Family Court Review published by Wiley Periodicals LLC on behalf of Association of Family and Conciliation

Courts.

Family Court Rev. 2024;62:877–899. wileyonlinelibrary.com/journal/fcre 877

KEYWORDS

marital property, non-marriage alimony cohabitation

Key points for the family court community

•The pluralist model offers a middle ground between

treating cohabitants as strangers and treating them as

married for purposes of regulating marital property,

spousal support, and inheritance.

•Marriage laws should strengthen the communal aspects

of the relationship while cohabitation laws should place

greater emphasis on the spouses' individual autonomy.

•Cohabitation law should be less rigid than marriage law

in terms of distinctions among different types of cohabi-

tants and opt-out options.

INTRODUCTION

The 20th century's liberalization of family law had a destabilizing effect on legal marriage's traditional monopoly on

spousal relationships.

1

Consequently, lawmakers and legal scholars turned their focus to regulating non-marital rela-

tionships.

2

Nevertheless, for many years, the law of non-marriage took a back seat to the fight for marriage rights by

same-sex couples and marginalized groups. In the United States, the widely celebrated case Obergefell v. Hodges

3

opened the door to a new and independent discussion of the law of non-marriage. Lawmakers

4

and legal scholars

5

have debated whether we should impose marriage-like commitments on non-married partners. One school of

thought believes that we should separate the legal regimes governing marriage and non-marriage based on the for-

mal status the couple chooses.

6

Although adherents to this approach oppose imposing marriage-like commitments

on cohabitants, they do not offer a coherent alternative for regulating cohabitation as a unique social institution.

Other scholars take a more functional approach that advocates regulating relationships based on their essence,

regardless of their formal status.

7

Under this approach, despite their formal differences, cohabitation and marriage

are viewed as substantively identical and thus, should be treated equally by the law. What is missing from the current

discourse is a third option, which would treat marriage and cohabitation as two equally respected options, with each

subject to its own regulatory regime.

1

See Shahar Lifshitz, The Liberal Transformation of Spousal Law: Past, Present and Future 13 THEORETICAL INQUIRIES IN L., 15, 20–22 (2012) (hereinafter Lifshitz,

The Liberal Transformation).

2

See Marsha Garrison, Is Consent Necessary? An Evaluation of the Emerging Law of Cohabitant Obligation, 52 UCLA L. REV. 815 (2005) (hereinafter Garrison, Is

Consent Necessary); Grace G. Blumberg, Cohabitation Without Marriage: A Different Perspective, 28 UCLA L. REV. 1125 (1981); Elizabeth S. Scott, Marriage,

Cohabitation and Collective Responsibility for Dependency,U.C

HI.LEGAL F. 225 (2004) (hereinafter Scott, Marriage, Cohabitation and Collective Responsibility);

Shahar Lifshitz, Married Against Their Will? Toward a Pluralist Regulation of Spousal Relationships,66W

ASH.&LEE L. REV. 1565 (2009); Am. L. Inst., PRINCIPLE OF

THE LAW OF FAMILY DISSOLUTION:ANALYSIS AND RECOMMENDATIONS Ch. 6 (2002) (hereinafter ALI).

3

Obergefell v. Hodges, 576 U.S. 644 (2015).

4

Unif. Cohabitants' Econ. Remedies Act (Unif. L. Comm'n 2021).

5

See, for example, Courtney G. Joslin, Autonomy in the Family, 66 UCLA L. REV. 912 (2019) (hereinafter Joslin, Autonomy in the Family). See also Erez Aloni,

Compulsory Conjugality,53C

ONN.L.REV.55 (2021) (hereinafter Erez Aloni, Compulsory Conjugality); June Carbone & Naomi Cahn, Nonmarriage,76MD.

L. REV. 55, 60–61 (2016) (hereinafter Carbone & Cahn, Nonmarriage); Barbara Atwood & Naomi R. Cahn, Nonmarital Cohabitants: The US Approach,

44 HOUSTON J. OF INT'LL. 191, 206–207 (2022) (hereinafter Atwood & Cahn, Nonmarital Cohabitants).

6

Carbone & Cahn, Nonmarriage,supra note 5, at 60–61. See also Kaiponanea T. Matsumura, Choosing Marriage, 50 U.C.D. L. REV. 1999 (2017).

7

See Albertina Antognini, The Law of Nonmarriage, 58 B.C. L. REV. 1 (2017) (hereinafter Antognini, The Law of Nonmarriage) (characterizing and critiquing this

approach). See also Ayelet Blecher-Prigat, Echoes of Nonmarriage,51A

RIZ.ST. L.J. 1213 (2020) (hereinafter Blecher-Prigat, Echoes of Nonmarriage).

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