Marriage is on the Decline and Cohabitation is on the Rise: At What Point, if Ever, should Unmarried Partners Acquire Marital Rights?

This Article, forthcoming in Volume 50 of the Family Law Quarterly, draws attention to the cultural shift in the formation of families that has been and is taking place in this country: Marriage is on the decline and cohabitation is on the rise. Part I documents this cultural shift by using recent government data to trace the decline of marriage and the rise of cohabitation. Between 2000 and 2010, the population grew by 9.71%, but the husband and wife households only grew by 3.7%, while the unmarried couple households grew by 41.4%. Because of the Supreme Court’s decision in Obergefell v. Hodges, marriage is now universally available to same-sex couples. Part I considers the impact of same-sex marriage on the marriage rate. Part I then describes the benefits and obligations of marriage and closes by noting the demographic characteristics of cohabiting couples. The Article points out that cohabitation is a temporary or short-term state in most cases: The parties either break up or get married fairly quickly. Nevertheless, a small percentage of cohabiting couples continue to cohabit for much longer or for life. Because more of them are added every year, the longer-term cohabitations accumulate in the population. Part II argues the case for treating cohabiting couples whose relationship shows that they are (or were) deeply committed to one another as married in fact. The Article finds that a consensus has quietly emerged in legislation to this effect that has been enacted in Australia, Canada, Ireland, New Zealand, and Scotland, and introduced in the United Kingdom for England and Wales. These countries—plus the United States—are known collectively as the Anglosphere. The United States, however, standing alone in the Anglosphere, has yet to move on marital rights. For convenience, this Article refers to the statutes that have been enacted or introduced in all of these countries but the U.S. as the “Anglosphere marital-rights legislation.” To one degree or another, legislation has also been enacted in other developed countries, especially on the European Continent, but this Article focuses, for comparison, on the Anglosphere marital-rights legislation, because the Anglosphere statutes, being in English, are more accessible to readers of this Journal. In the United States, the American Law Institute (ALI) has proposed granting longer-term cohabitants rights similar to married couples upon dissolution of the relationship. Drawing on the Anglosphere marital-rights legislation, the ALI proposal, and other resources, the Article presents for discussion a draft De Facto Marriage Act. The Draft Act, however, does not, and probably should not, provide a mechanism for automatically declaring a couple as married in fact. Couples who deliberately decline to marry should not have their decision overridden. Consequently, the Draft Act is not set up to be self-executing. A court judgment is required. The Article concludes by pointing out that a de facto marriage judgment would qualify a couple for all federal as well as state benefits and obligations of marriage.