Center for Gender & Sexuality Law
Recently, the privileged legal status of marriage has become the subject of political and academic controversy. Some feminist critics argue that marriage, the source of women's subordination, is outmoded as a family form and that its privileged status should be abolished. Others argue that informal cohabitation unions should be subject to the same legal treatment as marriage. Representative of this approach is a recent A.L.I. proposal that creates a domestic partnership status for cohabiting couples. On the other side of the debate, most defenders of marriage tend to be religious and social conservatives who favor traditional marriage on moral grounds.
In this essay, I offer a utilitarian defense of the special status of marriage (including same-sex marriage) as family form that promotes social welfare because it functions relatively well to satisfy individual dependency needs. Legal marriage allows couples to register their commitment and choose a formal status with a package of clearly defined and enforceable legal rights, privileges, and obligations. Even today, marriage represents a relatively stable family form, because of its formal status and because it is regulated by a set of social norms that reinforce commitment. I argue that even marriages that end in divorce serve more effectively than other family forms to provide financial security for dependent family members. Informal unions, in contrast, are less reliable, because the behavioral expectations and financial obligations between the parties are uncertain and legal enforcement is difficult.
Government privileging of marriage and neutrality toward informal unions does not mean that financial understandings between parties in cohabitation relationships should be unenforceable. I argue that contract theory supports a default rule framework that presumes that property acquired during long term unions is shared and that support is available to dependent partners. Such default rules will mitigate the harsh inequity that results today when courts decide that parties' understandings are too ambiguous for contractual enforcement. This autonomy-based framework is superior to the approach of the A.L.I. Principles, under which an unchosen status is imposed on unmarried couples.
Elizabeth S. Scott,
Marriage, Cohabitation, and Collective Responsibility for Dependency,
University of Chicago Legal Forum, Vol. 2004, p. 225, 2004
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/1319