Intimate Partner Sharing and Commitment Today

My thanks to Angel Maldonado and the rest of the Concurring Opinions team for inviting me to blog this month. During my guest stint I will highlight the law’s involvement in the everyday lives of couples, exploring the intersections of law, sharing and economic behavior and gender relations.

Is longstanding connection and commitment falling out favor? Does solitary individualism rule our times, even in our personal relationships? It is easy to see the disconnects around us. Pick the celebrity divorce of your choice as an example. After forty years of marriage, even Al and Tipper called it quits. So do a lot of ordinary couples. Although declining a bit in recent decades, divorce rates remain high and cohabitants break up rates are even higher. Some even suggest that marriage itself should be on the chopping block—get the state out of intimate relationships, don’t privilege one kind of relationship over another, and leave adults to choose, define and resolve their own relationships.

But failures and worries of relationship failures notwithstanding, the vast majority of American’s today still desire and in fact pursue deep long lasting relations with an intimate partner, and for many, marriage is still seen as the ideal. Although marriage rates have decreased and vary, especially by race and socioeconomics, most people in the U.S. still get married. Lifetime marriage rates from the 2000 census show that overall 86% of men and 88% of women have married at least once by the time they are 49. Interestingly, many unmarried folks are also enthusiastic about marriage. For example, Pew Research Center data from a 2007 survey found that most unmarried adults say they want to marry. Both the never-married parents as well as the cohabiters in the survey were more skeptical than all others that a person can lead a complete and fulfilled life if he or she remains single. No doubt then, committed coupling is still very much in vogue. Something remains powerfully attractive about being part of an intimate partner relationship more generally and for many, about marriage in particular.

What so many people are after is a committed sharing relationship—a protected arena to build and enjoy a web of interdependent connections that bridge the gap between individuals. For many, marriage is the vehicle of choice for this kind of relationship, although surely, cohabiting relationships recurrently serve these goals as well. Because cohabitation is more variable, I will focus on marriage for now, as marriage clearly includes a strong sharing norm. Research demonstrates that extensive sharing is viewed as a centrally important goal for marriage. And behavior reflects this. Although not in every way, and certainly not always perfectly accomplished, spouses regularly engage in an interdependent sharing of their lives, socially and economically.

How should law regard sharing commitments and behavior among couples? Should sharing be supported and nurtured? For any couple who desires it? In what form? Should law funnel intimate partner sharing into a particular relationship structure such as marriage or perhaps civil unions? Or should law seek to reduce interdependence and maximize independence for partners? Alternatively, perhaps law should withdraw altogether and leave it to couples to govern themselves?

Although appealing in terms of its potential for self-determination and pluralism, the law is not and cannot be agnostic to couple relations. Law already does regulate intimate partner life even day to day. Consider marital property regimes for example. Law defines who owns and has power over family wealth during ongoing marriage, at divorce and at death. And some involvement continues to be pragmatic and necessary. Family life is predictably and understandably informal. Couples don’t tend to govern their lives by written legal documents, they rarely order their own affairs by contract—and many don’t even have wills. Families call upon law for dispute resolution and to facilitate ordinary wealth transfers.

So taking law’s regulation of the family as a given, what are its effects and purposes then? Setting aside the considerable potential benefits to society for supporting couples sharing goals, there are good reasons for law to account for sharing within the couple relationship itself. In my view, at a minimum law must serve both a facilitative and a protective function. Couples choose to share their lives, and law should support these connections of choice—couples’ relational autonomy interests. Yet along with the potential for intimacy, couples shared living inevitably also brings risk and vulnerability—both interpersonal and economic. And largely because of the work, family and property law interface that accords little or no value to unpaid family care work disproportionately provided by women, it turns out that economic risks in families are asymmetric and gendered. Women are more at risk from sharing than men are. So another key role for law is to protect individual autonomy for each intimate partner—to provide a safety net—and this is particularly needed for women. As it stands now, contemporary intimate partner law does not serve these functions well. Important aspects of the laws governing joint lives neglects or even rejects the sharing nature of couple relations and at the same time, sustains gender hierarchies. I will describe more of the modern legal landscape with suggestions for change in future posts.

Next up: spousal economic relations law during ongoing marriage. How should legal power be distributed between spouses?

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2 Responses

  1. Todd Brower says:

    Hello Alicia,

    First, nice to see the work of a former colleague here. Congratulations.

    Second, I would be interested to know if you looked at the demographics and work on same-sex couples/families in drawing your conclusions. For example, you note that “economic risks in families are asymmetric and gendered” because of the lesser value placed on still disproportionately female, unpaid family care. Work on same-sex couples often shows that they, too, model traditional breadwinner/care-giver roles – certainly asymmetrical, but only gendered to the degree that the relationship or society undervalues that home work through a sex-stereotyped lens. [Brower, 17 Am. U.J. Gender Soc. Pol’y & L. 1 (2009)]. With same-sex couples/families in married, quasi-married, or unofficially recognized relationships, I wonder how that additional dimension is reflected in the themes your work pursues.


  2. Alicia Kelly says:

    Hi Todd. Thanks for commenting. I appreciate your important question. I argue for seeing the value of caregiving within the family economy regardless of the gender or sexual orientation of the caregiver. At the same time however, I emphasize that unpaid caregiving work for children, for other dependents and for the elderly, continues to be done much more by women than men. And then its low value in property law works to deepen economic inequalities at home. Interestingly, the developing literature on economic behavior in same sex relationships I am familiar with finds that there is greater parity in terms of sharing the load of both market and home labor. There tends to be less specialization. I look forward to reading your article.