This article analyzes the desirability of a "conscriptive" approach that bases the obligations of cohabitants on status instead of contract. This approach has been adopted in some other nations; the American Law Institute has advocated its use in the United States, arguing that marriage and cohabitation are functionally equivalent. The article examines the evidence relevant to this claim and finds that it does not support the ALI position. Instead, the evidence shows that married and cohabiting couples tend to behave and view their relationships quite differently: cohabitants are much less likely than married couples to share or pool resources; cohabitation usually functions as a substitute for being single, not for being married. Cohabitation thus does not imply marital commitment, the accepted basis of marital obligation. Nor, given its typically short duration and limited sharing, is it likely that cohabitation generally induces dependency or leads to unjust enrichment. Because of these differences, it would be unfair to impose marital obligations on cohabitants simply because a relationship has survived for a legislatively determined time period. Individualized inquiry into the nature of a couple's relationship is also undesirable as it is likely to produce highly uncertain and inconsistent results.
Is Consent Necessary: An Evaluation of the Emerging Law of Cohabitant Obligation52 UCLA L. Rev. 815 (2005)
Citation InformationMarsha Garrison. "Is Consent Necessary: An Evaluation of the Emerging Law of Cohabitant Obligation," 52 UCLA L. Rev. 1 (2005)