Commentary Magazine


"Shacking Up"

To the Editor:

Kay S. Hymowitz is quite right that most Americans want to marry, and it is certainly a good bet that children are better off when born to married rather than to unmarried mothers [“The Cohabitation Blues,” March]. But as the lead author of the American Law Institute (ALI) report she cites, what puzzles me is her suggestion that this conclusion somehow casts doubt on the wisdom of the ALI’s recommendation that those who for years share a life together, whether married or not, should have the same financial claims against one another when their relationship ends.

The issue, after all, is how to treat not casual cohabiters but unmarried persons who have conducted themselves as a committed couple. If an unmarried mother in such a relationship sacrifices earnings to serve as the children’s primary caretaker, why should she be denied the same share of the property acquired by the couple over their years together, or the financial assistance from her former partner, that a married mother would receive? Since the great majority of long-term, unmarried couples do not make prior agreements concerning these matters, the law must decide for itself what is fair.

There is no reason to think that allowing these claims would keep cohabiters from marrying. The decision to marry is influenced by social and economic realities, not by legal rules. For couples that remain together for five years, the likelihood of marrying rises with income, an effect that is particularly strong among African Americans, who have had the steepest decline in marriage rates. According to the National Center for Health Statistics, as annual family income goes from under $25,000 to $50,000 or more, the chance of marriage between African American cohabiters rises from 39 percent to 71 percent.

In any event, one must also note that long-term unmarried relationships between men and women are not common; most such couples marry or split up. For that reason, the ALI’s recommendations would have their greatest impact on same-sex couples, whose failure to marry can hardly be treated as voluntary.

Ira Mark Ellman
College of Law
Arizona State University
Tempe, Arizona

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To the Editor:

Kay S. Hymowitz criticizes, on normative grounds, an American Law Institute report that recommends reforming the country’s laws on the dissolution of marriage and the termination of long-term nonmarital cohabitation. As one of the authors of the report, I agree (as does the ALI) that marriage better serves the interests of society than does nonmarital cohabitation. But the primary thrust of family-dissolution law is remedial rather than normative; it must deal with families as it finds them, not as it would like them to be.

For the last quarter-century, American law has regulated the termination of long-term nonmarital cohabitation under a framework introduced by the California Supreme Court in Marvin v. Marvin (1976). But this framework, which relies on the law of contract and quasi-contract, has proven to be substantively and administratively wanting. The ALI took a new tack, following the lead of other English-speaking countries like Canada, New Zealand, and Australia. At the termination of a stable, long-term relationship of cohabitation, the ALI would like to see the courts apply largely the same rules as govern property distribution and spousal support in a case of divorce, unless the parties have contracted otherwise. The purpose of this treatment is not “to celebrate” nonmarital cohabitation, as Kay Hymowitz suggests, but merely to distribute equitably the financial gains of the relationship and the financial losses occasioned by its end.

To the extent that the rules of dissolution proposed by the ALI would have any normative impact, they should encourage marriage for those cohabiters who have sought to enjoy the relational benefits of marriage without undertaking legal responsibilities to their partners. The ALI rules would remove this incentive to avoid marriage.

Grace Ganz Blumberg
UCLA Law School
Los Angeles, California

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To the Editor:

Kay S. Hymowitz’s reasoning in “The Cohabitation Blues” is undermined by her fundamentally flawed presumption that cohabitation and commitment are mutually exclusive. Like the corollary that a marriage license links people for life, this is a canard.

The number of unmarried couples in the United States is skyrocketing, and new census data show that four out of ten such households include children. These families deserve the social and legal equity that the American Law Institute recommends.

Ashton Applewhite
Alternatives to Marriage
Project
New York City

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To the Editor:

I very much enjoyed Kay S. Hymowitz’s article on cohabitation. My wife of ten years and I lived together for an illuminating six months before deciding to “tie the knot,” during which time we evolved from a state of emotional commitment that whispered “maybe” to one that proudly declared “I will.” More tellingly, we came to recognize a solidifying desire to share the future cycles of life and to enter those cycles in firm partnership. Our period of cohabitation implied that we had not yet reached that point.

I agree that the state should not sanction nonmarital arrangements. Indeed, its refusal to do so properly recognizes the difference in levels of commitment between married and unmarried couples. A person who does not expect a full-fledged commitment from his or her mate should not expect the state to subsidize a partial commitment Benefits for nonspouses, damages for “marital” dissolution, and “domestic partnership” status for unmarried couples fly in the face of the participants’ own expectations.

The one large exception, of course, is gay couples. In virtually every jurisdiction, gay marriage is impossible. Here, I believe, we cannot have it both ways. If gay marriage is not allowed, and benefits and other legal privileges are also withheld from nonmarital “spouses,” gay men and women are essentially denied the options afforded to straight couples. We therefore need either to revisit the issue of sanctioning gay marriage or to make an awkward exception with respect to gay partnerships, giving them various benefits and rights denied to other unmarried couples.

Jeffrey Stillman
Pacifica, California

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To the Editor:

One false and harmful message conveyed by the sexual revolution is that cohabitation is a sure way to find out if a couple has the basis for a happy and enduring marriage. A recent study by the National Center for Health Statistics reveals that, to the contrary, couples that live together before getting married are more likely to divorce. As its authors concluded, “After ten years, 40 percent of [previously] cohabitating couples had broken up, versus 31 percent of those who did not live together first.” A 1991 study by the social scientists Elizabeth Thompson and Ugo Collela found that, among the 13,000 adults surveyed, couples who had lived together before marriage reported “greater marital conflict and poorer communication than married couples who had never cohabitated.”

Clearly, as Mother Teresa observed in her 1982 commencement address at Harvard, the most precious gift a young man can give to a young lady, and a young lady to a young man, is a virgin heart, a virgin soul.

Haven Bradford Gow
Greenville, Mississippi

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Kay S. Hymowitz writes:

Both Ira Mark Ellman and Grace Ganz Blumberg, two of the reporters for the ALI report I criticize in my article, imply that their recommendations are simply an attempt to be fair to cohabiters and would have no impact on whether or not people marry. Mr. Ellman asserts “the decision to marry is influenced by social and economic realities, not by legal rules”; Grace Blumberg observes that the recommendations are “remedial rather than normative.”

This strikes me as specious. As both ALI authors surely know, the law defines what marriage is. It tells us who is married and who is not. The law’s function in defining the boundaries of marriage is especially important in a pluralistic society, where other forms of authority are too diverse to adhere to a cultural consensus. The ALI proposals would have it that marriage is essentially the same as cohabitation; married couples have simply observed “formalities” while cohabiters have not. This isn’t normative? How can you possibly know that such a radical redefinition would have no impact on how people behave? And, by the way, if the distinction between marriage and cohabitation is so superficial, why then, as both Mark Ellman and Grace Blumberg concede, are children better off in married-couple families?

As for the question of gay cohabiters raised by both Mr. Ellman and Jeffrey Still-man, the most recent census data indicate that their number represents significantly less than 1 percent of total American households. There may be a need to address some of the legal problems faced by these couples, but given the stakes—and given the relatively small numbers of people involved—equating marriage with “shacking up” is not the way to do it.

Ashton Applewhite reminds us that there do exist committed cohabiting couples who remain unmarried. Though their numbers are quite small among the ranks of couples living together, he is certainly correct; I know a number of such couples myself. But these are people who are choosing not to marry. Many of them are distinctly hostile to the institution; he can check his own website for examples. What puzzles me is why Mr. Applewhite and the ALI would respond to what I take to be a conscious decision on the part of some Americans to choose an alternative family form by proposing to regulate it as if it were not. Do they have reason to believe that people who decide to cohabit rather than marry do not know what they are doing?

Finally, Haven Gow is correct that living with a future spouse before tying the knot seems to do nothing to assure a more successful marriage. As for Mother Teresa’s recipe for marriage—“a virgin heart, a virgin soul”—we will have to take her word for it. Given what we know about human nature, we are unlikely to be able to test the proposition any time soon.

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