Nonmarital cohabitation: Social revolution and legal regulation

Family Law Quarterly

Volumn 42, Issue 3, 2008, Pages 309-331

  Garrison, Marsha ^a  

^a BROOKLYN LAW SCHOOL   (United States)

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EID: 69249136310     PISSN: 0014729X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (279)

1. -557 P.2d 106 (Cal. 1976).
2. See Homer H. Clark, Jr., The Law of Domestic Relations 45-46 (1st ed. 1968).
3. See, e.g., Hill v. Estate of Westbrook, 247 P.2d 19 (Cal. 1952)
4. Otis v. Freeman, 85 N.E. 168 (Mass. 1908)
5. Jane Massey Draper, Annotation, Recovery for Services Rendered by Persons Living in Apparent Relation of Husband and Wife Without Express Agreement for Compensation, 94 A.L.R.3d 552 (1980).
6. Professor Clark's 1968 treatise on family law does not even include an entry on cohabitation.
7. See generally Clark, supra note 2.
8. See, e.g., Fernandez v. Zorrilla, 354 P.2d 260 (Ariz. 1960) (enforcing contract to care for rental properties in exchange for a portion of the rents)
9. Bridges v. Bridges, 270 P.2d 69 (Cal. Dist. Ct. App. 1954) (holding that an agreement to pool earnings and share joint accumulations was enforceable even though performance was contemporaneous with meretricious relations)
10. Zytka v. Dmochowski, 18 N.E.2d 332 (Mass. 1938) (finding that former cohabitant was entitled to an accounting)
11. th ed. 2008) ("The fact that past cohabitation is the motive for a promise will not invalidate it.").
12. See, e.g., Chenowth v. McDowell, 226 P. 535 (Ariz. 1924)
13. Henderson v. Spratlen, 98 P. 14 (Colo. 1908)
14. Kurtz v. Frank, 76 Ind. 594 (1881)
15. Emmerson v. Botkin, 109 P.531 (Okla. 1910)
16. Stewart v. Waterman, 123 A.524 (Vt. 1924)
17. see also Restatement of Contracts §§ 589 (1932).
18. See Restatement (Third) of Trusts §§ 7-9
19. Sugg v. Morris, 392 P.2d 313 (Alaska 1964) (holding that plaintiff had failed to demonstrate the amount she had contributed toward the purchase price)
20. Hall v. Hall, 219 P.2d 808 (Cal. Dist. Ct. App. 1950) (quieting title in favor of plaintiff who had transferred title to property to cohabitant because of restriction on a prisoner owning property).
21. "[C]ourts use quantum meruit to compensate a person for services rendered in the absence of a contract.... [The doctrine] lacks readily ascertainable rules for the determination of the proper amount of compensation. The technique used to determine recovery varies according to the circumstances of each case."
22. Jeffrey L. Oakes, Comment, Article 2298, the Codification of the Principle Forbidding Unjust Enrichment, and the Elimination of Quantum Meruit as a Basis for Recovery in Louisiana, 56 La. L. Rev. 873, 874-875 (1996).
23. See generally Judy Becker Sloan, Quantum Meruit: Residual Equity in Law, 42 DePaul L. Rev. 399 (1992) (surveying history and usage of quantum meruit doctrine).
24. For pre-1958 cases endorsing the use of quantum meruit principles in cases involving unmarried cohabitants
25. see Draper, supra note 3.
26. th ed. 2000) ("The usual requirements for imposition of a constructive trust are: 1) a confidential or fiduciary relationship; 2) a promise, express or implied, by the transferee; 3) a transfer of property in reliance on the promise; and 4) unjust enrichment of the transferee. But the constructive trust remedy is not limited to these circumstances ... [and] may be imposed in situations where... the court is moved simply by the desire to prevent unjust enrichment.")
27. th ed. 1987).
28. For pre-1958 cases applying constructive trust principles to cohabitants
29. see, for example, Cole v. Manning, 248 P. 1065 (Cal. Dist. Ct. App. 1926)
30. Wosche v. Kraning, 46 A.2d 220 (Pa. 1946).
31. See Restatement of Contracts §§ 512 (1932)
32. J. Thomas Oldham & David S. Caudill, A Reconnaissance of Public Policy Restrictions upon Enforcement of Contracts Between Cohabitants, 18 Fam. L.Q. 93 (1984) (surveying public policies in favor of restrictions on cohabitation contracts).
33. See, e.g., Andrew J. Cherlin, Toward a New Home Socioeconomics of Union Formation, in The Ties That Bind: Perspectives on Marriage and Cohabitation 126, 127 (Linda J. Waite ed. 2000) [hereinafter The Ties That Bind] ("[S]ince the 1970s, cohabitation outside of marriage, which had previously been confined to the poor, has become increasingly common and acceptable among the general population. It has emerged as an important part of the union formation process, often preceding first marriages and sometimes substituting for them.").
34. See Winston Ehrmann, Premarital Sexual Behavior and Sex Codes of Conduct with Acquaintances, Friends, and Lovers, 38 Soc. Forces 158 (1959)
35. Mary Z. Ferrell et al., Maturational and Societal Changes in the Sexual Double-Standard: A Panel Analysis (1967-1971; 1970-1974), 39 J. Marriage & Fam. 255 (1977)
36. Ira L. Reiss, The Double Standard in Premarital Sexual Intercourse: A Neglected Concept, 34 Soc. Forces 226 (1956).
37. Economists George Akerlof, Janet Yellin, and Michael Katz have argued, in a widely cited analysis of nonmarital birth, that the invention of the birth control pill coupled with the legalization of abortion constituted a significant "technological shock" that radically shifted patterns of sexual behavior.
38. See George Akerlof et al., An Analysis of Out-of-Wedlock Childbearing in the United States, 111 Q. J. econ. 279 (1996).
39. However, given evidence of a significant shift in sexual mores before the Supreme Court's 1973 decision in Roe v. Wade, 410 U.S. 113 (1973), it seems unlikely that legal innovation was a significant factor in producing the shift.
40. See Arland Thornton, Changing Attitudes Toward Family Issues in the United States, 51 J. Marriage & Fam. 873 (1989).
41. See Thornton, supra note 12, at 884 tbl.4 (reporting that in 1965, 69% of surveyed women and 65% of surveyed men under thirty said that premarital sex was "always" or "almost always" wrong while, in 1972, only 24% of women and 21% of men did so).
42. See infra note 18.
43. See Jason Fields & Lynne M. Casper, U.S. Census Bureau, P20-537, America's Families and Living Arrangements: Population Characteristics (2001).
44. See Kelly Raley, Recent Trends and Differentials in Marriage and Cohabitation, in The Ties That Bind, supra note 10, at 19, 23 tbl.2.1.
45. See Susan L. Brown et al., Cohabitation Among Older Adults: A National Portrait, 61 J. Gerontology Series B: Psychol. Sci. & Soc. Sci. S71 (2006) (reporting that more than one million older adults, representing 4% of unmarried individuals, currently cohabit and that about 90% of these older cohabitants were previously married).
46. See Susan L. Brown, Union Transitions Among Cohabiters: The Significance of Relationship Assessment and Expectations, 62 J. Marriage & Fam. 833, 838 (2000) (reporting that about 20% of cohabitants disagree about the strength of their relationship)
47. Larry L. Bumpass et al., The Role of Cohabitation in Declining Rates of Marriage, 53 J. Marriage & Fam. 913, 923 (1991) (reporting same)
48. Patrick Heuveline & Jeffrey M. Timberlake, The Role of Cohabitation in Family Formation: The United States in Comparative Perspective, 66 J. Marriage & Fam. 1214 (2004) (describing range of cohabitation types)
49. Kathleen Kiernan, The Rise of Cohabitation and Childbearing Outside Marriage in Western Europe, 15 Int'l J.L. Pol'y & Fam. 1 (2001) (same)
50. Sharon Sassier & James McNally, Cohabiting Couple's Economic Circumstances and Union Transitions: A Re-examination Using Multiple Imputation Techniques, 32 Soc. Sci. Res. 553 (2004) (finding that 42% of surveyed cohabitants disagreed about the strength of their relationship).
51. See Kiernan, supra note 18
52. Kathleen Kiernan, Unmarried Cohabitation and Parenthood: Here to Stay? European Perspectives, in The Future of the Family 66 (Daniel P. Moynihan et al. eds., 2004) [hereinafter The Future of the Family].
53. See Stephanie J. Ventura & Christine Bachrach, Nonmarital Childbearing in the United States 1940-99, 48 Nat'l Vital Stat. Rep. 16 (2000), http://www.cdc.gov/nchs/data/nvsr/nvsr48/nvs48-16.pdf.
54. See Timothy M. Smeeding et al., The Challenge of Family System Changes for Research and Policy, in The Future of the Family, supra note 19, at 1,8 fig. 1.3 (showing increases in European nonmarital birth rates between 1960 and 2000).
55. Marvin v. Marvin, 557 P.2d 106, 121-122 (Cal. 1976).
56. Id. at 122.
57. Id. at 122.
58. Id. at 122 n.25.
59. Ann Lacquer Estin, Unmarried Partners and the Legacy of Marvin v. Marvin:Ordinary Cohabitation, 76 Notre Dame L. Rev. 1381, 1382-1383 (2001).
60. See Levar v. Elkins, 604 P.2d 602 (Alaska 1980)
61. Cook v. Cook, 691 P.2d 664 (Ariz. 1984)
62. Salzman v. Bachrach, 996 P.2d 1263 (Colo. 2000)
63. Boland v. Catalano, 521 A.2d 142 (Conn. 1987)
64. Mason v. Rostad, 476 A.2d 662 (D.C. 1984)
65. Wilcox v. Trautz, 693 N.E.2d 141 (Mass. 1998)
66. Carlson v. Olson, 256 N.W.2d 249 (Minn. 1977)
67. Kinkenon v. Hue, 301 N.W.2d 77 (Neb. 1981)
68. Hay v. Hay, 678 P.2d 672 (Nev. 1984)
69. Tapley v. Tapley, 449 A.2d 1218 (N.H. 1982)
70. Kozlowski v. Kozlowski, 403 A.2d 902 (N.J. 1979)
71. Morone v. Morone, 413 N.E.2d 1154 (N.Y. 1980)
72. Beal v. Beal, 577 P.2d 507 (Or. 1978)
73. Doe v. Burkland, 808 A.2d 1090 (R.I. 2002)
74. Hinkle v. McColm, 575 P.2d 711 (Wash. 1978)
75. Goode v. Goode, 396 S.E.2d 430 (W. Va. 1990)
76. Watts v. Watts, 405 N.W.2d 303 (Wis. 1987)
77. Kinnison v. Kinnison, 627 P.2d 594 (Wyo. 1981)
78. Posik v. Layton, 695 So. 2d 759 (Fla. Dist. Ct. App. 1997)
79. Bright v. Kuehl, 650 N.E.2d 311 (Ind. Ct. App. 1980)
80. Kerkove v. Thompson, 487 N.W.2d 693 (Iowa Ct. App. 1992)
81. Ellis v. Berry, 867 P.2d 1063 (Kan. Ct. App. 1993)
82. Hudson v. DeLonjay, 732 S.W.2d 922 (Mo. Ct. App. 1987)
83. Dominguez v. Cruz, 617 P.2d 1322 (N.M. Ct. App. 1980)
84. Suggs v. Norris, 364 S.E.2d 159 (N.C. Ct. App. 1988)
85. Mullen v. Suchko, 421 A.2d 310 (Pa. Super. Ct. 1980)
86. Small v. Harper, 638 S.W.2d 24 (Tex. Ct. App. 1982)
87. J. Thomas Oldham, Divorce, Separation and the Distribution of Property §§ 1.02 (2002) (listing decisions following Marvin)
88. th 219 (1999).
89. See Minn. Stat. §§ 513.075 (2008)
90. Tex. Fam. Code Ann. §§ 1.108 (Vernon 2007)
91. Morone, 413, N.E.2d at 1155
92. Tapley, 449 A.2d at 1219.
93. See Hewitt v. Hewitt, 394 N.E.2d 1204 (III. 1979)
94. Davis v. Davis, 643 So. 2d 931 (Miss. 1994)
95. Long v. Marino, 441 S.E.2d 475 (Ga. Ct. App. 1994)
96. Schwegmann v. Schwegmann, 441 So. 2d 316 (La. Ct. App. 1983)
97. Carnes v. Sheldon, 311 N.W.2d 747 (Mich. Ct. App. 1981).
98. Estin, supra note 26, at 1383.
99. Harry D. Krause et al., Family Law: Cases, Comments, and Questions 235 (2007) (quoting Marvin v. Marvin, 5 Fam. L. Rep. (BNA) 3077 (Cal. Ct. App. 1979)).
100. Id. at 122.
101. See Marvin v. Marvin, 176 Cal. Rptr. 555, 559 (Ct. App. 1981).
102. Based on Shepardizing Marvin using headnotes 2-3, 7-8, 10-12, 14, 21-23, 27-28, 32-33, 35-36.
103. -765 P.2d 373 (Cal. 1988).
104. -115 P.3d 1212 (Cal. 2005).
105. See Elden v. Sheldon, 758 P.2d 582 (Cal. 1988)
106. Coon v. Joseph, 237 Cal. Rptr. 873 (Ct. App. 1987)
107. Lewis v. Hughes Helicopter, Inc., 220 Cal. Rptr. 615 (Ct. App. 1985)
108. Hendrix v. Gen. Motors Corp., 193 Cal. Rptr. 922 (Ct. App. 1983)
109. Nieto v. City of Los Angeles, 188 Cal. Rptr. 31 (Ct. App. 1982).
110. See Smith v. Fair Employment & Hous. Comm'n, 913 P.2d 909 (Cal. 1996)
111. Donahue v. Fair Employment & Hous. Comm'n, 2 Cal. Rptr. 2d 32 (Ct. App. 1991).
112. See Norman v. Unemployment Ins. Appeals Bd., 663 P.2d 904, 910 (Cal. 1983).
113. -106 Cal. Rptr. 2d 899 (Ct. App. 2001).
114. -224 Cal. Rptr. 186 (Ct. App. 1986).
115. -18 Cal. Rptr. 2d 75 (Ct. App. 1993).
116. See Estate of Black, 206 Cal. Rptr. 663, 669 (Ct. App. 1984).
117. See Tannehill v. Finch, 232 Cal. Rptr. 749, 751 (Ct. App. 1986).
118. See Schafer v. Superior Court, 225 Cal. Rptr 513, 517 (Ct. App. 1986).
119. See Kurokawa v. Blum, 245 Cal. Rptr. 463 (Ct. App. 1988)
120. Estate of Fincher, 174 Cal. Rptr. 18 (Ct. App. 1981)
121. see also Nelson v. Nevel, 201 Cal. Rptr. 93 (Ct. App. 1984) (finding that plaintiff's contract claim was time barred but permitting her to amend complaint to include constructive trust claims subject to four-year statute of limitations)
122. See Friedman v. Friedman, 24 Cal. Rptr. 2d 892, 899 (Ct. App. 1993).
123. See Velez v. Smith, 48 Cal. Rptr. 3d 642, 658 (Ct. App. 2006).
124. See People v. Delph, 156 Cal. Rptr. 422, 426 (Ct. App. 1979).
125. See Estate of Brandl v. Mall, No. B192529, 2007 Cal. App. Unpub. LEXIS 4955, at *1-2, 8-9 (June 21, 2007) (holding that alleged holographic will providing that "I leave everything to [appellant] if she fucks and sucks me 1 million times before I die" was based on an illegal condition precedent and thus invalid)
126. see also Goines v. Wilkes, No. B191720, 2007 Cal. App. Unpub. LEXIS 2857 (Apr. 9, 2007) (limiting recovery to $600 dental bill based on promissory estoppel).
127. See Delia Zoppa v. Delia Zoppa, 103 Cal. Rptr. 2d 901 (Ct. App. 2001)
128. Whorton v. Dillingham, 248 Cal. Rptr. 405 (Ct. App. 1988).
129. See Jones v. Daly, 176 Cal. Rptr. 130 (Ct. App. 1981).
130. See Alderson v. Alderson, 225 Cal. Rptr. 610 (Ct. App. 1986) (upholding equal property division award in case of twelve-year cohabitation when parties held themselves out as married, had three children, acquired substantial real property, and the evidence supported the trial court's finding of an implied contract to share equally all property acquired during the course of their relationship)
131. In re Marriage of Barter, No. B142934, 2001 Cal. App. Unpub. LEXIS 884 (Dec. 10, 2001) (upholding divorce court's award of property acquired before marriage to husband based on his contributions of separate property).
132. See Miller v. Kline, No. B193605, 2008 Cal. App. Unpub. LEXIS 362 (Jan. 16, 2008)
133. In re Marriage of Bernie, No. E040127, 2007 Cal. App. Unpub. LEXIS 7035 (Aug. 28, 2007)
134. Schoenig v. Levin, No. C047640, 2006 Cal. App. Unpub. LEXIS 4113 (May 11, 2006)
135. Lorch v. Lorch, No. H026669, 2005 Cal. App. Unpub. Lexis 11599 (Dec. 16, 2005)
136. Koach v. Gates, No. F044000, 2004 Cal. App. Unpub. Lexis 10689 (Nov. 23, 2004)
137. Ng v. Wong, No. H023323, 2003 Cal. App. Unpub. Lexis 458 (Jan. 14, 2003)
138. Robertson v. Reinhart, No. A095025, 2003 Cal. App. Unpub. Lexis 204 (Jan. 8, 2003)
139. Estate of Boben, No. A092609, 2001 Cal. App. Unpub. Lexis 1398 (Nov. 21, 2001).
140. See Fontes v. McCarty, No. E039755, 2006 Cal. App. Unpub. Lexis 11392 (Dec. 19, 2006) (reversing judgment in favor of plaintiff when trial court found that defendant's agreement to convey interest in house to plaintiff was procured through undue influence)
141. Taylor v. Polackwich, 194 Cal. Rptr. 8 (Ct. App. 1983) (affirming judgment insofar as it denied plaintiff girlfriend an ownership interest in defendant boyfriend's house because there had been no evidence to support a constructive trust claim; reversing judgment that ordered defendant to allow plaintiff to live in his house for a four-year period, to pay plaintiff a rehabilitative award, and to pay plaintiff for moving costs; and holding that the rehabilitative award could not stand because plaintiff did not have a legal or equitable basis for such relief).
142. See supra note 27.
143. See Connell v. Francisco, 898 P.2d 831 (Wash. 1995). An intermediate appellate court in Oregon has also held that judges have "equitable powers" to reach a "fair result" at the end of a period of cohabitation.
144. See Wilbur v. De Lapp, 850 P.2d 1151,1153 (Or. Ct. App. 1993).
145. See Lisha M. Carlile, Note, Like Family: Rights of Nonmarried Cohabitational Partners in Loss of Consortium Actions, 46 B.C. L. Rev. 391 (2005).
146. But see Lozoya v. Sanchez, 66 P.3d 948 (N.M. 2003).
147. See Krause et al., supra note 31, at 248-49
148. Katherine M. Forbes, Note, Time for a New Privilege: Allowing Unmarried Cohabitating Couples to Claim the Spousal Testimony Privilege, 40 Suffolk U. L. Rev. 887 (2007) (noting that courts have not developed evidentiary privilege for cohabitants).
149. See U.S. Census Bureau, State & County QuickFacts, http://quickfacts.census.gov/qfd/states/51000.html (last visited Aug. 4, 2008)
150. Wikipedia, List of U.S. States by Population, http://en.wikipedia.Org/ wiki/List-of-U.S.-states-by-population (last visited Aug. 4, 2008).
151. The Maryland population is more than 5.5 million.
152. See Wikipedia, supra note 60.
153. Attorney Grievance Comm'n v. Ficker, 572 A.2d 501, 506 (Md. 1990).
154. See Unitas v. Temple, 552 A.2d 1285, 1291 n.6 (Md. 1989) ("There is not a suggestion in this case that the social relationship was meretricious. Counsel for Temple have also deliberately steered wide of any 'palimony' theory.").
155. See Baxter v. Wilburn, 190 A. 773 (Md. 1937)
156. Lynch v. Rogers, 10 A.2d 619 (Md. 1940).
157. See Donovan v. Scuderi, 443 A.2d 121 (Md. 1982).
158. See Wikipedia, supra note 60.
159. -413 N.E.2d 1154 (N.Y. 1980).
160. Based on Shepardizing Morone using headnote 1. (Morone has only two headnotes.)
161. See, e.g., PDK Labs, Inc. v. Krape, 716 N.Y.S.2d 323 (App. Div. 2000)
162. Ratteni v. Cerreta, 728 N.Y.S.2d 401 (App. Div. 2001)
163. People ex rel. Conyers v. Dalsheim, 540 N.Y.S.2d 201 (App. Div. 1989)
164. NCJ Cleaners, L.L.C. v. ALM Media, Inc., 844 N.Y.S.2d 619 (Sup. Ct. 2007)
165. Roth v. United Fed. of Teachers, 787 N.Y.S.2d 603 (Sup. Ct. 2004).
166. -489 N.E.2d 712 (N.Y. 1985).
167. Based on Shepardizing O'Brien using headnotes 1-12.
168. Cases that go to trial are more likely to involve professional degrees and separate property than are settled cases, but even among this relatively wealthy group, when I reviewed judicial decision-making under New York's Equitable Distribution law over the first ten years that the statute was in effect (1984-1993), only 12% of my sample of all reported decisions in which the property award could be determined (n=383) involved a professional degree or license.
169. See Marsha Garrison, How Do Judges Decide Divorce Cases? An Empirical Analysis of Discretionary Decision Making, 74 N.C. L. Rev. 401, 530 tbl.A3 (1996).
170. Estin, supra note 26, at 1400.
171. See M.D. Bramlett & W.D. Mosher, Cohabitation, Marriage, Divorce, and Remarriage in the United States 22, 22 tbl.9 (2002). However, the likelihood that cohabitation will lead to marriage appears to be declining.
172. See Larry L. Bumpass, The Changing Significance of Marriage in the United States, in The Changing Family in Comparative Perspective: Asia and the United States 63, 71 (Karen O. Mason et al. eds., 1998).
173. See Pamela J. Smock, Cohabitation in the United States: An Appraisal of Research Themes, Findings, and Implications, 26 Ann. Rev. Soc. 1, 3 (2000) (summarizing research)
174. see also Bramlett & Mosher, supra note 74, at 22, 22 tbl.15 (reporting that 49% of first premarital cohabitations are disrupted within five years).
175. See Heuveline & Timberlake, supra note 18, at 1223 tbl.2.
176. See Cherlin, supra note 10, at 135 (summarizing evidence).
177. See Lynne M. Casper & Suzanne M. Bianchi, Continuity and Change in the American Family 44-45 (2002) (stating that in 1978, 35% of cohabiting women and 38.5% of cohabiting men were age thirty-five or older, and those numbers increased in 1998 to 44% of cohabiting women and 48% of cohabiting men)
178. Bramlett & Mosher, supra note 74, at 17-18 tbl.21.
179. See Casper & Bianchi, supra note 78, at 11 tbl.C (noting that of women age twenty to twenty-four, 11% were cohabiting, and 27% were married; among women age thirty-five to forty-four, less than 5% were cohabiting, and 68% were married).
180. See id. at 52-53 tbl.2.3 (showing that Caucasian and African-American married men had significantly higher levels of college education and income than cohabiting men, and Hispanic married men had higher income levels but not higher levels of college education)
181. Steven L. Nock, A Comparison of Marriages and Cohabiting Relationships, 16 J. Fam. Issues 53, 66 tbl.1 (1995)
182. see also Larry Bumpass & H.H. Lu, Trends in Cohabitation and Implications for Children's Family Contexts in the United States, 54 Population Stud. 29, 32 (2000)
183. Smock, supra note 75, at 4.
184. See Marsha Garrison, Is Consent Necessary? An Evaluation of the Emerging Law of Cohabitant Obligations, 52 UCLA L. Rev. 815, 840 (2005) [hereinafter Garrison, Is Consent Necessary?] (reviewing evidence)
185. Marsha Garrison, Marriage Matters: What's Wrong with the ALI's Domestic Partnership Proposal, in Reconceiving the Family: Critique on the American Law Institute's Principles of The Law of Family Dissolution 305 (Robin H. Wilson ed., 2006) [hereinafter Garrison, Marriage Matters] (same).
186. See Garrison, Is Consent Necessary?, supra note 81, at 840-43 (reviewing evidence)
187. Garrison, Marriage Matters, supra note 81, at 307-15 (same).
188. See Garrison, Is Consent Necessary?, supra note 81, at 841-43 (summarizing evidence)
189. Garrison, Marriage Matters, supra note 81, at 310-11 (same).
190. See Sharon Sassier, The Process of Entering into Cohabiting Unions, 66 J. Marriage & Fam. 491, 498-501 (2004).
191. Wendy Manning & Pamela J. Smock, Measuring and Modeling Cohabitation: New Perspectives from Qualitative Data, 67 J. Marriage & Fam. 989, 999 (2005).
192. Kathryn Edin et al., A Peek Inside the Black Box: What Marriage Means for Poor Unmarried Parents, 66 J. Marriage & Fam. 1007, 1011 (2004).
193. See Heuveline & Timberlake, supra note 18, at 1216-18
194. Kiernan, supra note 18
195. see also Anne Barlow & Grace James, Regulating Marriage and Cohabitation in 21st Century Britain, 67 Mod. L. Rev. 143, 157-161 (2004) (quoting British cohabitants describing range of reasons for cohabitation).
196. I have used the term "conscriptive" to emphasize the fact that the obligations imposed by laws of this type are both compulsory and involuntary. The Canadian Law Reform Commission has referred to such laws as ascriptive, emphasizing the fact that they impute marital status to the unmarried.
197. See Law Comm'n of Can., Beyond Conjugality: Recognizing and Supporting Close Personal Adult Relationships (2001), http://tabletology.com/docs/beyond- conjugality.pdf.
198. See Nicholas Bala, Controversy Over Couples in Canada: The Evolution of Marriage and Other Adult Interdependent Relationships, 29 Queen's L.J. 41, 45-19 (2003) (describing provincial support rules). The only exception is Quebec.
199. See id. at 48-49. A cohabitant right to share property accrued during the relationship appears to be available only to couples in the Northwest Territories.
200. See Family Law Act, S.N.W.T. 1997, ch. 18, §§ 1.
201. See Lindy Wilmott et al., De Facto Relationships Property Adjustment Law-A National Direction, 17 Austl. J. Fam. L. 1, 2-5 (2003) (describing differences in state rules).
202. See Property (Relationships) Amendment Act 2001, http://www.austlii.edu. au/nz/legis/consol-act/paa2001378.pdf (last visited Aug. 4, 2008).
203. For descriptions of the legislation and its development, see Bill Atkin, The Challenge of Unmarried Cohabitation-The New Zealand Response, 37 Fam. L.Q. 303 (2003)
204. Virginia Grainer, What's Yours Is Mine: Reform of the Property Division Regime for Unmarried Couples in New Zealand, 11 Pac. Rim L. & Pol'y J. 285 (2002).
205. See Connell v. Francisco, 898 P.2d 831 (Wash. 1995).
206. See Am. Law Inst., Principles of the Law of Family Dissolution: Analysis and Recommendations §§ 6.01 et seq. (2002).
207. Id. §§ 6.03 cmt. b.
208. See Garrison, Is Consent Necessary?, supra note 81, at 848-54 (reviewing evidence)
209. Garrison, Marriage Matters, supra note 81, at 315-18 (same).
210. See Garrison, Is Consent Necessary?, supra note 81, at 839-48 (reviewing evidence)
211. Garrison, Marriage Matters, supra note 81, at 307-15 (same).
212. See Garrison, Is Consent Necessary?, supra note 81, at 848-64 (reviewing evidence)
213. Garrison, Marriage Matters, supra note 81, at 315-27 (same).
214. See Marsha Garrison, The Decline of Formal Marriage: Inevitable or Reversible?, 41 Fam. L.Q. 491, 495 (2007) (reviewing evidence).
215. See id. at 495-96.
216. See, e.g., Cynthia Osborne et al.. Instability in Fragile Families: The Role of Race-Ethnicity, Economics, and Relationship Quality 12-13 (Ctr. for Research on Child Wellbeing, Working Paper No. 2004-17FF, 2004) (finding in nationally representative study that, even after controlling for the "mother's characteristics, parents' fertility history, the couple's economic characteristics, and relationship quality, . . . [p]arents who are cohabiting at their child's birth still have over twice the odds of separation as compared to parents who are married . . . .")
217. Wendy Manning et al., The Relative Stability of Cohabiting and Marital Unions for Children, 23 Pop. Res. & Pol'y Rev. 135 (2004) (finding that U.S. White, Black, and Hispanic children born to cohabiting parents experience greater levels of instability than children born to married parents and that White and Hispanic children whose cohabiting parents marry do not experience the same levels of family stability as those born to married parents)
218. Wendy Manning & Ronald E. Bulanda, Cohabitation and Family Trajectories, in Handbook of Measurement Issues in Family Research 199 (Sandra Hofferth & Lynne Casper eds., 2006) (reporting that, by age fourteen, three-fifths of children who lived with two cohabiting biological parents experienced family change in contrast to only one-third of children who lived with two married biological parents)
219. R. Kelly Raley & Elizabeth Wildsmith, Cohabitation and Children's Family Instability, 66 J. Marriage & Fam. 210 (2004)
220. see also Kiernan, supra note 18, at 84 fig.3.6 (showing European marriage and cohabitation dissolution rates by country).
221. See Casper & Bianchi, supra note 78, at 111-12 fig.4.3 (reporting, in 1998, 6.9% poverty rate for married-parent households and 38.7% rate for single-mother households). Noncustodial divorced and never-married parents are also less likely to pass wealth on to their adult children.
222. See Frank F. Furstenberg, Jr., et al., The Effect of Divorce on Intergenerational Transfers: New Evidence, 32 Demography 319 (1995)
223. Nadine F. Marks, Midlife Marital Status Differences in Social Support Relationships with Adult Children and Psychological Well-Being, 16 J. Fam. Issues 5 (1995).
224. Rates of physical and sexual abuse are significantly higher when children live with an adult stepparent or cohabitant.
225. See Michael N. Stiffman et al., Household Composition and Risk of Fatal Child Maltreatment, 109 Pediatrics 615 (2002) (reporting that children residing in households with an unrelated adult were eight times more likely to die of maltreatment than children in households with two biological parents and that risk of maltreatment death was not increased for children living with a sole biological parent)
226. Robin Fretwell Wilson, Undeserved Trust: Reflections on the AUI's Treatment of de Facto Parents, in Reconceiving the Family: Critique on the American Law Institute's Principles of The Law of Family Dissolution 90 (Robin H. Wilson ed., 2006) (reviewing evidence).
227. See Sara McLanahan & Gary Sandefur, Growing Up with a Single Parent: What Hurts, What Helps 39-63 (1994) (reviewing evidence)
228. Wendy Sigle-Rushton & Sara McLanahan, Father Absence and Child Weil-Being: A Critical Review, in The Future of the Family, supra note 19, at 116, 120-22 (same).
229. See Paul R. Amato & Jacob Cheadle, The Long Reach of Divorce: Divorce and Child Weil-Being Across Three Generations, 67 J. Marriage & Fam. 191, 193 (2005) (summarizing studies)
230. Sigle-Rushton & McLanahan, supra note 103, at 122-25 (same).
231. See Casper & Bianchi, supra note 78, at 46 (reporting that children whose parents never married see their fathers less frequently after parental separation)
232. Marcy Carlson et al., Unmarried But Not Absent: Fathers' Involvement with Children After a Nonmarital Birth (Ctr. for Research on Child Wellbeing, Working Paper No. 2005-07, 2005) (finding that parents' relationship status at child's birth is key predictor of paternal involvement)
233. Lingxin Hao, Family Structure, Private Transfers, and the Economic Well-Being of Families with Children, 75 Soc. Forces 269 (1996) (finding that married fathers were more likely to pay child support)
234. Sandra L. Hofferth & Kermyt G. Anderson, Are All Dads Equal? Biology Versus Marriage as a Basis for Paternal Investment, 65 J. Marriage & Fam. 213, 223-224 (2003) (finding that unmarried fathers were significantly less involved with their children than married fathers)
235. see also Julie E. Artis, Maternal Cohabitation and Child Well-Being Among Kindergarten Children, 69 J. Marriage & Fam. 222 (2007) (finding no differences in child well-being for children living in cohabiting stepfamilies and cohabiting biological-parent households)
236. Susan L. Brown, Family Structure and Child Well-Being: The Significance of Parental Cohabitation, 66 J. Marriage & Fam. 351 (2004) (reporting that children living in cohabiting-parent families experienced worse outcomes, on average, than those residing with married-parent families; among children ages six to eleven, economic and parental resources attenuated these differences, but resources did not make a difference among adolescents age twelve to seventeen).
237. Living with married parents is also significantly linked to age of sexual initiation, likelihood of having a teen birth, and high school graduation, even after family instability is taken into account.
238. See Wendy E. Manning & Ronald D. Bulanda, Parental Cohabitation Experiences and Adolescent Behavioral Outcomes (Bowling Green State Univ., Working Paper No. 06-15, 2006), http://www.bgsu.edu/downloads/cas/file35768.pdf.
239. See Sigle-Rushton & McLanahan, supra note 103, at 124-26 (reviewing research).
240. See Paul R. Amato & Alan Booth, A Generation at Risk: Growing Up in an Era of Family Upheaval 106-117 (1997) (summarizing studies)
241. Amato & Cheadle, supra note 104, at 192-93 (same)
242. see also Kathleen Kiernan, European Perspectives on Union Formation, in The Ties That Bind, supra note 10, at 40, 55 tb1.3.8
243. Jay D. Teachman, The Childhood Living Arrangements of Children and the Characteristics of Their Marriages, 25 J. Fam. Issues 86 (2004).
244. See Garrison, supra note 98, at 498-99 (reviewing research).
245. See id. at 498 (reviewing research).
246. See J.K. Kiecolt-Glaser & T.L. Newton, Marriage and Health: His and Hers, 127 Psychol. Bull. 472 (2001) (finding that unhappy marriages have negative physical-health consequences)
247. Catherine E. Ross et al., Reconceptualizing Marital Status as a Continuum of Social Attachment, 57 J. Marriage & Fam. 129 (1995) (finding that individuals with unhappy relationships have higher distress levels than people without partners)
248. Debra Umberson et al., You Make Me Sick: Marital Quality and Health over the Life Course (Population Research Ctr., Working Paper No. 03-04-05, 2003-2004), http://www.prc.utexas.edu/working-papers/wp-pdf/030405.pdf (reviewing evidence).
249. Amato & Booth, supra note 107, at 219.
250. See, e.g., Donna K. Ginther & Madeline Zavodny, Is the Male Marriage Premium Due to Selection? The Effect of Shotgun Weddings on the Return to Marriage, 14 J. Pop. Econ. 313 (2001) (finding that "at most 10% of the estimated marriage premium [in men's wages] is due to selection")
251. H.K. Kim & P.C. McHenry, The Relationship Between Marriage and Psychological Weil-Being-A Longitudinal Analysis, 23 J. Fam. Issues 885 (2002) (stating that data that "confirmed the strong effects of marital status on psychological well-being, supporting the protection perspective," indicated that "the transition to cohabiting did not have the same beneficial effects as marriage for psychological well-being" and produced "weak and inconsistent" evidence of selection effects)
252. Sigle-Rushton & McLanahan, supra note 103, at 126-30, 130 (analyzing selection effects and finding that they "do not account for all the differences in children, families, and subsequent outcomes")
253. Pamela J. Smock et al., The Effect of Marriage and Divorce on Women's Economic Weil-Being, 64 Am. Soc. Rev. 794,809 (1999) (stating that "the economic benefits of marriage are large, even above and beyond the characteristics of those who marry").
254. See An-Magritt Jensen & Sten-Erik Clausen, Children and Family Dissolution in Norway: The Impact of Consensual Unions, 10 Childhood 65 (2003) (finding that children of Norwegian cohabiting parents run a much higher risk of dissolution compared to children in marital unions and that "this risk is not diminishing as cohabitation becomes more widespread")
255. Kiernan, supra note 18, at 84 fig.3.6 (showing that 6% of Swedish marital unions and 25% of nonmarital unions dissolve within five years after the birth of a first child).
256. See Kyrre Breivik & Dan Olweus, Children of Divorce in a Scandinavian Welfare State: Are They Less Affected than US Children?, 47 Scandinavian J. Psych. 61 (2006) (based on study of more than 4,000 twelve- to fifteen-year-old
257. Jan O. Jonsson & Michael Gahler, Family Dissolution, Family Reconstitution, and Children's Educational Careers: Recent Evidence for Sweden, 34 Demography 277, 287 (1997) (finding that, even after controlling for all independent variables, children of divorced and separated parents and children living in reconstituted families have low school-continuation propensities compared to children living with both biological parents)
258. Helen Hansagi et al., Parental Divorce: Psychosocial Well-Being, Mental Health and Mortality During Youth and Young Adulthood: A Longitudinal Study of Swedish Conscripts, 10 Eur. J. Pub. Health 335 (2000) (reporting that in a group of Swedish conscripts, several indicators of low levels of well-being and mental illness, including alcoholism, were significantly correlated with parental divorce even after adjustment for antecedents and other factors)
259. Ingunn Storksen et al., Marriages and Psychological Distress Among Adult Offspring of Divorce: A Norwegian Study, 48 Scandinavian J. Psych. 467 (2007) (based on study of more than 8,000 adolescents, concluding that parental divorce was associated with significantly higher mean levels and larger variances in adolescent problems and that, in general, these effects persisted after controlling for demographic factors)
260. Gunilla Ringback Weitoft et al., Mortality, Severe Morbidity, and Injury in Children Living with Single Parents in Sweden: A Population-Based Study, 361 Lancet 289 (2003) (reporting, based on analysis of almost a million cases and controlling for factors such as socioeconomic status and parental mental health, that Swedish children in single-parent households showed significantly increased risks of "all adverse outcomes analyzed, including psychiatric disease, suicide or suicide attempt, injury, and addiction")
261. see also Taru H. Makikyro et al., Hospital-Treated Psychiatric Disorders in Adults with a Single-Parent and Two-Parent Family Background: A 28-Year Follow-Up of the 1966 Northern Finland Cohort, 37 Fam. Process 335 (1998).
262. See Kathleen Kiernan, Redrawing the Boundaries of Marriage, 66 J. Marriage & Fam. 980, 983 (2004).
263. Robert I. Lerman, Married and Unmarried Parenthood and Economic Well-Being: A Dynamic Analysis of a Recent Cohort 32 (2002), http://www.urban.org/ UploadedPDF/410540-Parenthood.pdf
264. see also Adam Thomas & Isabel Sawhill, For Love and Money? The Impact of Family Structure on Family Income, 15 future of Children 57 (2005).
265. Paul Amato, Tension Between Institutional and Individual Views of Marriage, 66 J. Marriage & Fam. 959, 962-963 (2004).
266. Id. at 962-63.
267. The "bandwagon" phenomenon is the subject of a large literature.
268. See generally James S. Coleman, Foundations of Social Theory (1990)
269. Stephen R.G. Jones, The Economics of Conformism (1984)
270. Thomas C. Schelling, Micromotives and Macrobehavior (1978).
271. See also Timur Kuran, Private Truths, Public Lies: The Social Consequences of Preference Falsification 69-82 (1995).
272. See Catherine Marsh, Back on the Bandwagon: The Effect of Opinion Polls on Public Opinion, 15 Brit. J. Pol. Sci. 51 (1984).
273. Kuran, supra note 119, at 71.
274. See Thornton, supra note 12, at 884 tbl.4.
275. See Larry Bumpass, The Changing Context of Parenting in the United States, Parenthood in America, 1999, http://parenthood.library.wisc.edu/Bumpass/ Bumpass.html.
276. See Statistics Canada, Marriages 2003, The Daily, Jan. 11, 2007, http://www.stat-can.ca/Daily/English/070117/d070117a.htm (showing marriage rates of 2.9 per 1,000 population in Quebec and rates of 4.9 (Manitoba) or higher in all other Canadian provinces except the frontier provinces of Nunavit and Northwest Territories). Correspondingly, the proportion of adults living in nonmarital relationships is double the proportion in the rest of Canada.
277. See Rejean Lachapelle, the High Prevalence of Cohabitation Among Franco-phones: Some Implications for Exogamous Couples (2007) (unpublished paper presented at 2007 annual meeting of the Canadian Population Society) (on file with author)
278. Benoit Laplante, The Rise of Cohabitation in Quebec: Power of Religion and Power Over Religion, 31 Can. J. Soc. 1 (2006).
279. See Garrison, supra note 98, at 512-16 (summarizing evidence).