Is Consent Necessary? An Evaluation of the Emerging Law of Cohabitant Obligation


In the United States today, unmarried cohabitants have no obligations to each other unless they have contracted to assume such obligations. “Conscriptive” rules that base the obligations of cohabitants on status instead of contract have been adopted in a number of other nations, and the American Law Institute has advocated adoption of the conscriptive approach in the United States. This Article analyzes the desirability of such a shift in legal standards and concludes that the evidence does not support the claim that marriage and cohabitation are functionally equivalent. 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 uncertain and inconsistent results.

Conscriptive reforms are not needed to protect marital investments or avert unjust enrichment. The private commitments of cohabitants can be honored through a revivified common law marriage doctrine and some type of voluntary registration or marriage option for same-sex couples. Unjust enrichment can be averted through traditional equitable remedies. Conscription also entails serious public policy disadvantages; it would introduce discordant values into the law of relational obligation, diminish personal autonomy, and falsely signal that marriage and cohabitation are equivalent states. Because marriage is advantageous for both adults and children, legal standards should foster marital commitments; by diminishing their importance, the conscriptive approach risks harm to individual interests and the public good. For all of these reasons, policymakers should affirm the role of commitment in the imposition of marital obligation and reject proposed conscriptive reforms.

About the Author

Professor of Law, Brooklyn Law School.

By uclalaw