Unbundling marriage law

Abstract

This article illuminates the legal regulation of the economic rights of non-marital partners at separation or death. Current approaches have typically fallen into two categories: one advocating for the separation of legal regimes based on formal status, treating cohabitant partners as strangers, and the other taking a functional approach, treating cohabitation and marriage as substantively identical. However, both approaches fail to offer a coherent alternative for regulating cohabitation. This article proposes a novel third option – the institutional, autonomy-based, pluralist model. The pluralist model acknowledges the legal commitment between cohabitants while carefully distinguishing the legal regulation of cohabitation from that of marriage. Unlike prevailing models that offer a “package deal,” the pluralist model selectively applies only suitable components of marriage law to non-marital relationships, considering thoughtful criteria for their applicability and ensuring a nuanced approach. The pluralist model offers a middle ground between treating cohabitants as strangers and treating them as married for purposes of regulating marital property, spousal support, and inheritance. Ultimately, it provides a framework that considers the complexities of non-married relationships while maintaining a desirable level of legal clarity.