by Martha Albertson Fineman
‘Cohabitation between unmarried persons has become increasingly common during the past two decades. Various levels of emotional commitment are found among cohabitors. Cohabitation may be a casual temporary relationship, an experimental stage preceding formal marriage, or an alternative to marriage and the various legal consequences that status carries.
This paper explores the legal system’s adjustment to these changing behavior patterns with the underlying assumption that as incidents of cohabitation increase, cohabitation will eventually be viewed as both legally and morally acceptable. The conclusion that cohabitation is becoming acceptable does not, in and of itself, reveal anything significant about either cohabitation or the process of legal change. Cohabitation may be tolerated or even approved if it is purely private conduct and does not conflict with wider public concerns. As cohabitation increases and becomes more public, however, the tensions caused by incomplete societal changes in attitude toward the behavior are exposed. When cohabitation “goes public,” legal institutions (the legislature, the prosecutors, and the courts) must resolve some of the conflicts which are presented. Each of these institutions operates under different constraints. The legislators decisions regarding adaptation of the cohabitation laws are more ex posed than those of the district attorneys or courts. The district attorneys and judges can modify the law or eliminate its impact through application in individual cases.
If the legal system is to reflect the increasing public acceptance of cohabitation, it must progress through three separate but related phases. First, criminal laws must be changed so that cohabitors do not risk direct sanctions from the state. In addition, laws must be developed to protect cohabitors from discriminatory or retaliatory conduct by others who disapprove of their choice. Finally, laws should evolve which regulate the relationship and define its consequences for the cohabitors themselves.
Historically, cohabitation was considered “deviant” behavior (and was criminally sanctioned in most states. Society’s long recognized preference for formal, ceremonial marriage was complemented by the threat of punishment for cohabitation. Criminal statutes punishing cohabitation were repealed in many states after the appearance of the authoritative recommendations of the American Law Institute in the Model Penal Code and an avalanche of commentary which criticized the use of the criminal law to punish “victimless crimes” or “moral violations.” Some states, however, have resisted attempts at repeal.
This resistance continues although cohabitors have been seeking and receiving from courts and some state legislatures protection from employers, creditors and others who discriminate against them because of their choice of lifestyle. Common law judges have also begun to fashion rules which regulate and define the civil relationship between the cohabitors. A cohabitor may find himself with an obligation to support or to share his property with his partner on much the same terms as if he had married her. In the civil area, doctrinal and statutory treatment of cohabitation has begun to add cohabitation to that category of human relationships which carries certain legal consequences. The shift from the traditional legal position that cohabitation was a choice to be discouraged or punished is difficult to make. Competing societal values and attitudes concerning cohabitation and its place within society are reflected in the legal system’s inconsistent treatment of cohabitation. Some statutes may be changed or new doctrines developed in response to cohabitation, but other statutes and cases will continue to reflect the traditional negative legal judgment. Cohabitation is not yet a legally neutral alternative to marriage.
The first part of this paper is an examination of the resistance to repeal of criminal laws punishing cohabitation: a description of how legislators, prosecutors and judges have responded to the increasing incidence of cohabitation in Wisconsin, where cohabitation is a crime. The conflict with other social values appears most clearly in the criminal area. An appreciation of the difficult political position of legislators indicates that it may be difficult to make predictions about formal repeal of cohabitation laws. The criminal laws have, however, been effectively altered on the prosecutorial level. District attorneys either refuse to prosecute cohabitors, or prosecute only those who are suspected of other illegal conduct.
As the second part of this paper demonstrates, the trends toward acceptance of cohabitation are visible in a variety of situations in the civil law. Civil penalties for those who cohabit, such as loss of custody or reduction in alimony, are now less likely to be assessed. In addition, mutual obligations are beginning to arise from cohabitation relationships. There are also clashes with other values in these areas, but the trends described in the second part of this article point toward an acceptance and recognition of the changing behavioral patterns. The changes in the civil area have been fashioned largely by the courts. The judges’ decisions are more shielded from public view than are those of the legislators, and, perhaps it is this fact which allows change to take place more easily.’
Fineman, Martha Albertson, Challenging Law, Establishing Differences: The Future of Feminist Legal Scholarship (1990). Florida Law Review, Vol. 42, 1990, Emory Public Law Research Paper, Forthcoming, Available at SSRN: https://ssrn.com/abstract=2132315