Expanding Nonmarital Relationships

Abstract

As nonmarital relationships become more common, courts and couples increasingly confront the ways in which legal marriage defines or affects other familial relationships. Legal and law reform responses to these relationships vary, but have generally lagged behind the pace of social change. i Despite the fact that people enter into nonmarital relationships for a variety of reasons, and structure their relationships in different ways, the law continues to use marriage as the defining category, even when marriage is legally irrelevant to the issues at hand. ii That may be because marriage carries a well-developed set of social meanings that have evolved over centuries, iii whereas nonmarital relationships have not yet been institutionalized in the United States and thus lack a defining set of social norms to guide and reinforce partners' behavior. iv Courts, scholars, the American Law Institute and the Uniform Law Commission, have been exploring these definitional problems. Additionally, we have now institutionalized a Nonmarriage Roundtable. The second Nonmarriage Roundtable was held in February 2020, at the University of Arizona James E. Rogers College of Law. It brought together approximately 25 scholars (most were legal academics, although Amanda Jayne Miller, a sociologist, was one of the Roundtable organizers) to engage with multiple aspects of nonmarital relationships, as well as with each other. This issue of Family Court Review includes two articles of the many presented and discussed during the Roundtable. The articles showcase some of the diversity of the issues that were discussed. One article focuses on the relationship between marital status, parents, and children, and the other focuses on how best to classify the relationship between adults who do not civilly marry. Both also address the role of the state in policing boundaries between marriage and nonmarriage. In "Marriage as Gatekeeper: The Misguided Reliance on Marital Status Criteria to Determine Third-Party Standing," Professor Barbara Atwood addresses the question of how the parents' marital status affects the outcome of disputes over third-party or nonparent contact with a child. As the article notes, many states use the parents' marriage as a way to limit the rights of third parties to visitation. The basis for this marital status criteria is the belief that protection of marital families is the way to protect parental liberty and autonomy. Yet when marriages end through divorce or death, or when the parents are not married, states examine how children can benefit from relationships with other close adults. Atwood argues that marital-status criteria operate without regard to the third party's actual relationship to the child, but instead focus on the parents' relationship. Consequently, when a child's parents are married, a third party with a compelling claim for custody or visitation may not have standing. But if the parents are unmarried or a parent has died, then that same third party might have standing. The article explores developing law...

Protect and Control: Coverture's Logics Across Welfare Policy and Abortion Law

“…The vestiges of coverture can be seen in debates surrounding the 1996 Personal Responsibility and Work Opportunity Reconciliation Act (PRWORA), the act that replaced Aid to Families with Dependent Children (AFDC) with TANF. If "services that take on the form of homemaking or child rearing-duties undertaken by the wife under coverture-do not lead to any attendant property rights," then TANF provides an example of how the logic of coverture continues to guide policy-making pertaining to reproductive labor (Antognini, 2019(Antognini, , p. 2145).…”

“…Under coverture, the "wifely" duties of homemaking were understood to be separate from markets and thus were not subject to considerations such as providing a living wage to compensate reproductive labor. Instead, it was assumed that husbands served as the primary breadwinners for their families (Antognini, 2019(Antognini, , p. 2151. The continuation of this separation of the market and the family is apparent in the lack of paid family leave, universal childcare, and substantive welfare programs in the U.S.…”