U.S. Cohabitation Law: Still Separate and Unequal

Ordinarily, the news about cohabitation in the United States focuses on its increasing frequency, or its relationship to parenting and later marital instability. Occasionally, a story appears about a state that still possesses a law against cohabitation and has undertaken a rare enforcement action. Far less noted, however, is the fact that the vast majority of U.S. states continue to draw a sharp legal line between cohabitation and marriage, attaching important rights and benefits to the latter, but not to the former. This indicates that despite the growing practice and approval of cohabitation in the U.S., most state lawmakers remain uncertain or even wary of it.

Since the beginning of this nation, marriage has been considered more than a private contract. Rather, it is always also a legal “status.” An old, but still cited U.S. Supreme Court decision explains the significance of granting legal “status” to what is also a consensual personal relationship. In the 1888 case of Maynard v. Hill, the Court wrote:

The [marriage] relation once formed, the law steps in and holds the parties to various obligations and liabilities. It is an institution, in the maintenance of which in its purity the public is deeply interested, for it is the foundation of the family and of society, without which there would be neither civilization nor progress. [As] expressed by the supreme court of Maine in Adams v. Palmer[citation omitted]: ‘When the contracting parties have entered into the married state, they have not so much entered into a contract as into a new relation, the rights, duties, and obligations of which rest not upon their agreement, but upon the general law of the state, statutory or common, which defines and prescribes those rights, duties, and obligations.’¹

By distinction, in the U.S., entering into cohabitation does not automatically create legal rights and obligations respecting matters like property distribution or financial support or inheritance rights. Instead, cohabiting couples may attempt to arrange legal and financial matters between themselves by entering into contracts or opting to take property in joint names in order to clarify ownership.

Most states have not articulated their reasons for declining to grant legal status to cohabitation, or even, in some cases, declining to enforce contracts made by cohabitants. States that have spoken on the matter express concerns about undercutting the significance of marriage. It is also possible, however, that their laws are simply a reflection of several basic differences between cohabitation and marriage.

Cohabitation, in general, is more unstable than marriage; and the parties do not regularly intermingle their financial affairs. Furthermore, lawmakers are likely respecting individuals’ freedom to contract. This is a very important principle of U.S. law. If two people have not chosen to enter into a marriage contract, then lawmakers will not treat them as if they have.

Some scholars have produced a steady stream of criticism of the state of U.S. law regarding cohabitation. They argue in the name of fairness for cohabitants who suffer financially when a relationship terminates, and point to the laws of more than a few foreign countries where cohabitants are treated more like married couples.

Still, U.S. law concerning cohabitation has changed very little even during decades of rapidly rising cohabitation rates.

An Early Question: Enforce Cohabitation Contracts?

In the legal universe, cohabitation burst onto the scene in 1976 with the lawsuit against actor Lee Marvin by the woman who had cohabited with him for 6 years (and taken his name), Michelle Marvin. In that case, the question concerned whether or not Lee had made a legally-enforceable promise to Michelle to share property and to support her for the rest of her life, even after their relationship ended. In the years prior to Marvin v. Marvin, it was generally agreed that because cohabitation was not socially desirable, agreements between cohabitants regarding exchanges of money or property were unenforceable; they were tainted by the “consideration” (something valuable exchanged by one party for the performance or promise of performance by another) assumed to form a part of every cohabitation agreement: nonmarital sexual relations. The California Supreme Court’s Marvin opinion, however, held that sexual relations were severable from a cohabitation agreement about financial matters—unless the contract explicitly hinged on the exchange of sex. Of course, a partner seeking to enforce such a contract had to prove its existence; but California held that it would enforce not only written or express contracts, but also oral and implied contracts. Furthermore, even in the absence of a contract, the court was willing to employ its “equitable powers” to achieve justice. In other words, the court would rely upon principles of fairness to bring about a just result, even without relying upon a precise legal rule, if, for example, the parties’ behavior (e.g. provoking unfair reliance or receiving services for free) warranted it.

While the Marvin court acknowledged some social concerns about cohabitation, it suggested in these early days of no-fault divorce and rising divorce rates that cohabitation might stabilize a later marriage. “This trial period, preliminary to marriage, serves as some assurance that the marriage will not subsequently end in dissolution to the harm of both parties,” the court wrote. It also concluded that social rejection of cohabitation was diminishing: "The mores of the society have indeed changed so radically in regard to cohabitation that we cannot impose a standard based on alleged moral considerations that have apparently been so widely abandoned by so many."

Post-Marvin, most states agreed to enforce cohabitation agreements not founded on a promise of nonmarital sex. Different requirements were applied, however, with some states enforcing only written or express agreements.

Still, a minority of states’ courts continue to refuse to enforce cohabitation contracts and treat cohabitants as legal strangers to one another for a variety of reasons. These include continuing uncertainty about the effects of cohabitation on marriage, and the desire for legislative, not judicial, intervention into so important a public institution. The legislatures in these states have not responded.

Illinois is an excellent example. In its decision in Hewitt v. Hewitt, the Illinois Supreme Court concluded there are “major public policy questions involved in determining whether…and to what extent it is desirable to accord some type of legal status to claims arising from” cohabitation, primarily because of potential “impact of such recognition upon our society and the institution of marriage.” The court also realized that evaluation of such a question would require data analysis and investigation “best suited … to the superior investigative and fact-finding of the legislative branch in the exercise of its traditional authority to declare public policy in the domestic relations field.

Even 36 years post-Hewitt, the Illinois Supreme Court continued to refuse to act judicially to recognize rights for cohabitants.

It is likely that the U.S. difference on cohabitation law relates to scholarship continuing to highlight the relationships between marriage and family stability, marriage and child-outcomes, and the lived, practical differences between the expectations and experiences of cohabitants and spouses.

Later Question: Treat Cohabitants Like Spouses?

While there is no reliable recordkeeping on the subject, it seems likely that the vast majority of cohabitants do not enter into contracts about their mutual rights and obligations. This means that when their relationships terminate by means other than marriage, there could arise myriad disputes about rights involving property and ongoing financial support. Children’s right to support from their legal parents is answered by the law’s insistence that noncustodial parents provide adequate support calculated according to state law applicable both to married and unmarried parents. But the adults, with few exceptions and absent a contract, do not have enforceable rights and obligations to one another. State family codes speak at length about married couples’ rights and obligations during marriage, divorce, and in death, but they are nearly universally silent about cohabitants.

One exception is Washington State. There, upon the dissolution of cohabitations meeting certain requirements of stability or longevity, property distribution is required. Even here, however, the rules applicable to cohabitants are not as favorable as those applying to the married. This is because the state legislature has not agreed that cohabitations are the “legal equivalent to marriages.”

But in many other states (and again, absent an enforceable contract) cohabitants have to rely upon some other indicia of their intent to share property. This might include their having taken property in joint names or having made significant contributions to property titled in another’s name. A claimant might also insist that an account has been “co-mingled.” But absent such showings, states have been generally unwilling to apply marital-dissolution standards to cohabitation.

Likewise, regarding standards applicable to ongoing relationships, states have maintained a bright line between marriage and cohabitation. For example, unlike the married, cohabitants do not obtain rights and obligations respecting inheritance or testimonial privilege. Nor are third parties required to treat currently cohabiting couples like spouses. Cohabitants, therefore, may not generally recover for wrongful death or loss of consortium (deprivations of the benefits of a family relationship caused by another person’s harming one of the family members). And cohabitants almost never receive private insurance survivors’ benefits or unemployment benefits related to a relocating partner. Health insurance companies are legally free to allow or disallow insuring a cohabiting partner as part of an employer-provided health insurance benefit. The federal government offers Social Security survivors’ benefits only to formally married spouses and not to cohabitants. States also regularly decline to grant survivor benefits for cohabiting partners of state employees.

Proposals to Treat Cohabitation More Like Marriage

States’ refusals to treat cohabitation more like marriage have not stopped legal scholars from proposing the opposite, but thus far, states have declined to adopt their proposals. In 2001, the American Law Institute (ALI) proposed a set of rules to create rights and obligations between cohabiting partners upon dissolution, without their express agreement, but in accordance with their actions. In the Principles of the Law of Family Dissolution: Analysis and Recommendations, the drafters proposed a newly defined “domestic partnership” status, which would arise under limited conditions including sharing a primary residence and having a “life together as a couple.” The latter is determined by factors such as agreements, intermingled finances, relationship duration, the degree of dependence or interdependence in their relationship, couple’s reputation, and many other factors. Couples would have to opt out in order to prevent the law’s application. Again, no state has passed a law based upon this ALI model.

Another recommendation offered by distinguished family law professor Lawrence Waggoner suggests legally creating a new status entitled “de facto marriage.” This would be available to the unmarried, who share a common household and a “committed relationship.” It would provide for rights and obligations not only at dissolution, but also during the ongoing relationship and at the death of a party; these rights and obligation are not only mutual but extend to some third parties, like the state. A “committed relationship” could be shown by factors concerning: the purpose, duration, and exclusivity of the relationship; intermingled finances; taking up formal legal obligations such as life or health insurance; or the shared parenting of a child. The law would presume a de facto marriage if the couple had shared a common household with a child for four years.

Still, there would be no automatic legal determination that a de facto marriage existed. Instead, the status would always be a matter for judicial determination, and even the “presumption” mentioned above would be rebuttable in court by clear and convincing evidence. Furthermore, a couple could opt out of such a status by entering into an enforceable nonmarital cohabitation agreement that says they do not intend to be treated as married by the law.

Contrast with Many Foreign Countries

U.S. law’s degree of caution or uncertainty about cohabitation can be understood even more clearly in distinction with other countries’ choices to assign to cohabitation more of the rights and responsibilities granted to marriage. More than a few nations and countries have granted marital–like rights to cohabiting couples—if their relationship meets several criteria. These include Australia, New Zealand, Canada, Ireland, the Scandinavian countries, and Scotland. At the same time, some countries, such as Italy, Poland, and Spain, and many countries in Asia and the Middle East, have opted not to extend such marital rights and responsibilities to cohabitants.

Foreign laws granting legal status to cohabitation vary. They may assign financial rights and responsibilities only upon dissolution and not during an ongoing relationship. They may require opting in by registration with the state (e.g Norway or France ) or by contracting in an agreement approved by the state (Belgium); or instead, simply their behavior in cohabiting will result in a property distribution or support obligation being imposed upon them (e.g. Slovenia, Croatia). Various obligations may be incurred only after a prescribed amount of time (e.g. Australia and some Canadian provinces).

However they differ, it is telling that so many foreign democracies have begun to assimilate cohabitation to marriage, while the U.S. has so far resisted this trend. There is no single theory to explain this. It is likely that the U.S. difference relates to scholarship that continues to highlight the relationships between marriage and family stability, marriage and child-outcomes, and the lived, practical differences between the expectations and experiences of cohabitants and spouses. It is also quite possible that U.S. law’s affection for individual freedom (and freedom of contract) is playing a role.

Still, pressures to assimilate cohabitation to marriage continue, especially in the wake of the Supreme Court’s paean to marriage as found in Obergefell v. Hodges. Some scholars complain that this opinion further marginalized unmarried couples as insufficient. Undoubtedly, these sorts of arguments will continue to mount, but they have not yet coalesced into a vocal, well-organized movement to grant status to cohabitation that is likely to change existing U.S. law anytime soon.

Helen Alvare’ is a Professor of Law at George Mason University School of Law and the author of Putting Children’s Interests First in U.S. Family Law and Policy: With Power Comes Responsibility.

1. Maynard v. Hill, 125 U.S. 190, 211(1888).