American Law Institute’s "Domestic Partners" Proposal

by Lynn D. Wardle

The American Law Institute (ALI), one of the oldest and most prestigious law reform organizations in America, recently garnered national headlines for making recommendations in family law. It’s selective membership includes many respected state and federal judges, local and national bar leaders, and influential law professors. For nearly 80 years, the ALI has sponsored many law revision proposals that have been embraced by state and federal legislators and influenced many judges. For example, the ALI promulgated many highly influential "Restatements of the Law" that judges often cite to decide new legal questions, the ALI helped draft the very important Uniform Commercial Code, and it has proposed several influential Model Codes including the Model Penal Code, and Model Code of Evidence.

Now the ALI has approved a significant new proposal for family law reform called the Principles of the Law of Family Dissolution (Principles). Approved in 2000, the Principles contain an extensive set of new rules to apply in proceedings relating to child custody and support (Chapters 2 & 3), property division (Chapter 4), alimony (Chapter 5), domestic partnership (Chapter 6), and antenuptial and pre-cohabitation agreements (Chapter 7). Some of the proposals in the ALI’s Principles recommend radical changes in family laws. Overall, they propose to expand of the types of relationships that enjoy privileged "family" status and benefits in law to include many "alternative" relationships, and to "deconstruct" and "level" family relations.

For example, in Chapter 6 (Domestic Partners) the ALI proposes to expand the types of relationships that may claim the full economic protections and privileges of marital status upon dissolution. It includes same-sex and heterosexual cohabitants who "for a significant period of time share a primary residence and a life together as a couple . . . ." Although contracting is possible, there is no prior registration, and the status of "domestic partner" is a retroactive determination made, like "palimony" determinations among nonmarital cohabitants today, upon breakup, by a court. Section 6.05 provides that "domestic-partnership property should be divided according to the principles set forth for the division of marital property," and §6.06 provides that "a domestic partner is entitled to compensatory payments [alimony] on the same basis as a spouse . . . ." In other words, nonmarital domestic partners enjoy exactly the same property division and alimony rights as married couples.

The ALI’s proposal to legalize domestic partnerships is quite radical. It broadly defines domestic partnership and sets low standards for legal determinations. It invites litigation, encourages the assertion of domestic partnership claims and the remedies provided are stunningly inappropriate. It presumes an economic interdependence beyond the real expectations of nonmarital cohabitants who often avoid marriage in order to avoid economic entanglements. It unjustifiably extends the same property and alimony rights to domestic partners as the law offers to couples who are involved in the much more significant, interdependent, socially beneficial relationship of marriage. If the ALI’s Domestic Partners proposal is widely adopted, it will undermine marriage by giving identical property and alimony rights to nonmarital cohabitants.

Policy makers must be careful not to send messages about family, marriage and parenting that are essentially false messages, suggesting a false equivalence among family structures. The last quarter-century has seen dramatic increases in childbearing by single, unattached women, nonmarital cohabitation, and divorce. We have neglected and taken for granted the benefits of marriage for far too long, and we are reaping the harvest of that neglect.

We cannot overlook the importance of the marriage-based family. Ironically, the increasing disintegration of the family is occurring at the same time as evidence of the benefits to individuals and society of marriage is more abundant and acknowledged by researchers than ever before. Recently, Professor Linda J. Waite, a distinguished demographer at the University of Chicago, reviewed the social science evidence and concluded that there are substantial benefits to individuals from being married. Society has a vested interest in the marriage-based family. We need to renew that interest and protect that interest.

Because this proposal is coming from the ALI, and because many leading judges, lawyers and law professors helped draft it, the Principles, including its Chapter 6 on Domestic Partners, is likely to find a receptive audience in at least some courts, legislatures and academic circles.

Lynn D. Wardle is a Professor of Law at Brigham Young University School of Law and an expert on Family Law. He also belongs to the ALI. This Backgrounder is excerpted from an article that was published by the B.Y.U. Law Review.

.See The American Law Institute <http://ali.org/> (Seen 24 Feb 2001).

.All references to provisions of Chapters 6 and 7 and the Comments and Reporters Notes thereto are to the American Law Institute, Principles of the Law Family Dissolution: Analysis and Recommendations Tentative Draft No. 4 (April 10, 2000).

.§ 6.01(1).
.§ 6.05.
.§ 6.06(1).