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).