7 , 2002
Should Cohabitation Be Legalized?
The prestigious American Law Institute (ALI) has issued a 1,200 page report proposing
laws to govern the breakup of long-term cohabiting relationships - that are the same as those for
married couples, including property division, child support and alimony.
Its purpose "is a fair distribution of the economic gains and losses incident to termination
of the relationship of domestic partners...according to equitable principles that are consistent and
predictable in application." These proposed rules would apply to cohabiting heterosexual
relationships or same sex unions lasting three years, or two years if a child is involved.
Dr. David Blankenhorn, president of the Institute for American Values is horrified: "They
are seeking to eliminate the distinction between married and unmarried people. It would abolish
the protected status of marriage as an institution, and plunge us into a brave new world of `close
relationships.' The law would treat all married or unmarried people the same.
"That is the radical essence of their proposal. People should have a freedom of choice, to
choose to be recognized as married. ALI takes away that freedom of choice and leaves it up to
some agency or a judge to figure out whether you are in a close relationship. There is a Big
Brother quality to it."
Prof. Grace Blumberg of the UCLA Law School, a key author of ALI's "Principles of the
Law of Family Dissolution," says they were originally clarifying rules in divorce proceedings.
However, a Judges Advisory Panel asked ALI to suggest how to deal with cohabiting couples.
Their only guideline in law was the Lee Marvin case, in which there was a contract between him
and a live-in lover. However, judges said most cohabiting relationships "don't have any
agreement. They don't contemplate what will happen when they break up. They look like married
families, have children together." Judges asked for an easily administrable set of rules.
Blumberg told of a man who had "economic and psychological power in a relationship, a
long-term one with children, but had never married her because he didn't want to incur
obligations. He had enormous incentives to avoid marriage, though the woman asked for
marriage. What we are doing is removing his incentive not to marry, because he will get the
responsibility of marriage without the benefits, (the status of marriage, the right to Social
Security, worker's compensation and health insurance)."
If he walks away, he can take all of his property and only has child support obligations.
The woman is economically hurt and the child is indirectly harmed. We believe there should be a
division of community property, the family home; and spousal support (alimony). Cohabitation of
short duration would not be included, unless there is a child.
John Crouch, Executive Director of Americans for Divorce Reform, acknowledges "There
are inequities and uncertainties in living together under present laws. But people choose that.
And people make the choice which is not marriage. They can either choose a free life style or
they have the ability to make contracts, like Marvin's palimony contract.
"However, the proposed new system undermines marriage by setting up a shadow system
next to it. Unlike marriage, it does not have a clear procedure for choosing to go into it.... The
better answer is marriage."
Dr. Ira Mark Ellman, the top editor of ALI's proposal, tells of a couple who lived
together from 1968 for 25 years. She put him through law school and then had several children.
She became ill with a bad back, and he left her and took the assets of the family home with him. She sued, but got nothing. "I think they had a responsibility to one another which ought to be the
same as if they had married," Gelman asserted.
Many people think that once a couple had cohabited for seven years that the law would
recognize a "common law marriage." That's incorrect. Only 11 states allow it, such as Alabama,
Kansas, Pennsylvania, Texas and South Carolina. But to have a common law marriage in those
states, the couple has to pretend to be married!
Prof. Allen Parkman, a marital economist, counters: "The idea of imposing obligations on
people that they were unwilling to impose on themselves is unfair. They had more than adequate
opportunity to marry. Or they could put both names on the deed of the house. To create a law
which says if they hang around long enough, society will take care of them - promotes
Fewer couples will marry, which gives the best protection for both adults and children.
If states expand the definition of what family is, the main beneficiaries will be divorce