The State of/and Nonmarital Unions

If the blitz of media coverage of the “State of the Union” of President Barack and First Lady Michelle Obama’s marriage may spur more general attention to the state of marriage and of government’s role in promoting it,  then perhaps today’s obituary of Michelle Triola Marvin, famous for her landmark “palimony” suit, in the 1970s, against actor Lee Marvin, might usefully direct attention to nonmarriage  and government’s proper role in nonmarital unions.  Marvin v. Marvin (1976) is a staple of Family Law casebooks and its basic concept of “palimony” — that economic obligations could arise between unmarried partners based on an express or implied contract or on various  equitable grounds — is part of our society’s basic vocabulary of relationships.  But there are many more nonmarital unions in the U.S. (and around the world) today than when Lee and Michelle Marvin lived together. And legal scholars continue to debate how law and policy should approach such unions. Morever, given that about 40% of households with unmarried cohabitants also include children, nonmarital unions  implicate broader concerns about family well-being. The term “fragile families,” for example, is used both by resarchers and by state and federal lawmakers to refer particularly to unmarried, low-income parents and their children.  “Palimony” simply addresses what partners may owe each other when their relationship dissolves. (And, as the various obituaries for Michelle Triola Marvin indicate, utlimately, she did not win any financial judgment against Lee Marvin; contemporary claimants are often unsuccessful, as well.) It does not address the broader question of whether there should be legal regulation of nonmarital unions or whether the government or various nongovernmental actors should bestow any privileges or benefits upon cohabitants by virtue of their status. Why, after all, should an intimate adult relationship have economic consequences? What interest does the state have in nonmarital unions? This is an area in which difficult tensions and questions abound.

Is nonmarital cohabitation a realm of freedom and countercultural choice (think of  Joni Mitchell crooning, around the time Lee and Michelle were cohabiting,  that she and her “old man . . . don’t need no piece of paper from the City Hall keeping us tight and true”) or a realm of vulnerability and possible exploitation (think of how female palimony claimants, in the case law,  often detail their many wifely contributions and sacrifices for their partner and the household)?  Is nonmarital intimacy and sexuality a delicious realm of freedom from state regulation (as in Queer Theory critiques of the quest for same-sex marriage) or a realm of exile from the umbrella of benefits and obligations attached to marriage, with resultant disadvantages and hardships?

Are people not marrying because marriage is of decreasing relevance to society or because they view marriage as out of reach? On the one hand, there is no doubt that the sequence of love, marriage, and the baby carriage is scrambled and even bypassed entirely; more people than ever before, for example, do not marry. Marriage itself is less a marker of maturity as, say, financial independence or holding a job. On the other hand, studies of low-income and working-class men and women indicate that they continue to aspire to the ideal of a happy marriage, but believe that they must attain a certain economic threshold before they marry. Sociologists detail how if, in an earlier generation, marriage was a rite of passage on the way to successful adult life, now, young people may view marriage as the capstone experience — a status that should not be entered into unless many financial prerequisites are in place. This leads to what some diagnose as a class-based marriage gap in which marriage becomes the province of the haves and increasingly out of reach of the have nots. It also leads to a situation in which people may separate becoming a parent from becoming a spouse. I don’t have space here to rehearse the very important sociological literature on this phenomenon and the policy puzzles it raises, but, once again, the issues are complex (I dicuss this in more depth in my book, The Place of Families (Harvard, 2006)). An emphasis in federal governmental policy on promoting “healthy marriage” in the case of unmarried parents seems to be useful in some cases, but not in others (e.g., where there are multiple barriers to stable family life and may also be violence).  A better aim in some cases may be, as Ronald Mincy has argued, meeting families where they are and addressing their array of educational, economic, and social needs,  rather than pushing a model of marriage.

A recent book by sociologist Andrew Cherlin, The Marriage G0-Round, reports that American both marry — and re-marry — and divorce more than most other peoples. Assessing marriage promotion policies, he cautions that,  from the perspective of child well-being, a stable single parent family is better than a child experiencing a succession of new adults entering and exiting the family.  The family form may be less critical than how a family functions, and this suggests caution about viewing marriage as the one-size-fits-all solution. As the Obama Administration considers the federal government’s role in strengthening families, and continues the “healthy marriage” and “responsible fatherhood” initiatives, these issues warrant ongoing and careful attention.

Returning now to the issue of  palimony and the legacy of Mchelle Triola Marvin’s lawsuit, there are genuinely hard questions about the state of nonmarital unions and the state and nonmarital unions. I have argued, in The Place of Families, that developing a registration or civil partnership system, by analogy to various European countries, would afford nonmarital couples a chance to make a formal commitment. The state might offer a menu of options allowing couples to choose the legal consequences of their intimate relationship. This might help to make cohabitation a more stable relationship form. This seems  preferable to imposing economic obligations on partners after their relationship ends, when there is often not evidence of an express contract. (Michelle Triola Marvin, learning from her experience, reportedly did have a legal contract concerning her 30-year cohabitation with Dick Van Dyke.)  The fact patterns typical of many palimomy cases suggest that certain economic vulnerabilities and dependencies often arise in intimate relationships, reminiscent of the classic wifely sacrifice and services in exchange for husbandly support.  In such cases, there is a continuing role for law to play in adjusting the equities between the parties when their relationship ends. But now that “palimony” is in its fourth decade, perhaps it is time to rethink the state of nonmarital unions.

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