As rates of cohabitation rise, and marriage becomes a status reserved almost exclusively for socio-economic elites, the scholarly calls for family law to recognize more nonmarital families grow stronger by the day. This Article unpacks contemporary proposals to recognize more nonmarital families and juxtaposes those proposals with family law’s contemporary marital regime. Family law’s status-based system provides a mostly simple and efficient means of distributing resources at the end of a marriage by imposing a formulaic, but distinctly communitarian, non-market-based approach to obligation, entitlement, and value. In full, the Article defends family law’s status-based system for what it does well, including dispensing with invasive inquiries into financial and sexual relationships, rejecting gendered market-based measures of recovery, and imposing communitarian obligations that can be efficiently enforced. It also acknowledges that this system leaves a growing class of people unprotected, but it suggests that many of those people, particularly low-income women of color, may want to be left out. The taxonomy provided in this Article should help scholars and legislators endeavoring to grapple with when it is appropriate to treat nonmarital couples as some kind of family. First, the nonmarriage proposals that impose communitarian obligations on cohabiting couples reject market-based measures of recovery but inflict categorization costs, which are invasive judicial inquiries into people’s financial and sexual practices. These proposals also may conscript those who can least afford, and have legitimate reasons to reject, communitarian obligations. Second, the nonmarriage proposals that do the best job of disrupting family law’s binary status system, while they respect the autonomy of those who do not want family law imposed on them against their wishes, run the risk of leaving those left vulnerable by the interdependencies of relationship with nothing. Finally, the proposals that suggest dispensing with most of family law and just relying on common law doctrines of contract and unjust enrichment inevitably incorporate gendered, neoliberal understandings of desert and reward because that is how the market assigns value. For those who want to reject a neoliberal approach to reward and obligation, there are benefits to family law exceptionalism and the much-maligned idea of seeing the family as the market’s opposite.
Katharine K. Baker, What is Nonmarriage?, 73 SMU L. Rev. 201 (2020).