The percentage of adult couples living in intimate nonmarital cohabitation continues to increase. The period of cohabitation is most often for a short period of time and entered into for several reasons. But for a small percentage of these and an increasing percentage of longer-term cohabitants, dissolution during life or at death often results in the unjust enrichment of one party. This Article examines methods of redress. In piecemeal fashion, a variety of states enforce nonmarital agreements, written and oral, during lifetime, while some enforce equitable remedies. Very few states enforce contract or equity remedies at death.
The paucity of remedies available to nonmarital cohabitants prompts the issue as to whether marital entitlements should be extended to nonmarital cohabitants who meet objective criteria. A modicum of states has begun to do this, and additional proposals have been introduced by the American Law Institute and by legal commentators. They propose that once a couple meets the criteria, they will be treated as spouses under state statutes. This is often the first step towards federal entitlements. This approach would entitle each party to federal and state entitlements associated with marriage, particularly distribution of property at dissolution during lifetime, or at death.
This Article discusses the evolution of family structure and the ascendency of privacy, liberty, and self-determination. Partially in response, an array of nonmarital unions have become commonplace in the past fifty years in the United States. Cases reveal the insufficiency of remedies available to these nonmarital couples at dissolution—even for those couples living in states willing to enforce express or implied nonmarital agreements. Strikingly, there are fewer remedies for nonmarital cohabitants at death.
Public policy mandates concern for all citizens, including the evolution of individualized family structures formed by its citizens. The issue addressed in this Article is whether public policy concerns warrant an extension of the marital presumptions traditionally associated with the commitment structure of marriage to a defined group of nonmarital cohabitants. Although increasingly rejected by state legislatures—in an effort to better control the workhorse functions of marriage—common law marriage may offer a remedy if enacted as common law commitment. Freed of the nitpicking elements of legislative proposals, common law commitment may better meet the needs of modern-day evolutions in human nature.
O'Brien, Raymond C.
"Marital Versus Nonmarital Entitlements,"
ACTEC Law Journal: Vol. 45:
2, Article 2.
Available at: https://scholarlycommons.law.hofstra.edu/acteclj/vol45/iss2/2