Nonmarital Cohabitation: A Return to Concubinage?

by Lynn D. Wardle

The dramatic increase in nonmarital cohabitation echoes a familiar refrain from the history of family-like relationships. It resembles in many ways the old relationship of "concubinage."

Recently, Census officials reported that "[t]here was a 71 percent increase in the number of unmarried partners living together between 1990 and 2000" Nonmarital cohabitation households now number 5.5 million, about 5 percent of all homes, up from 3 percent a decade ago. Since 1985 approximately half of all persons who married cohabited prior to marriage.

Cohabitation has become so common today that many reformers advocate the formal legalization of the relationship. The California Supreme Court initiated this legal movement in 1976 by holding in the famous case of Marvin v. Marvin, that although contracts against public policy generally are not enforceable, that rule did not bar enforcement of property sharing or support-promising "palimony" agreements among nonmarital cohabitants, unless (rarely, and only to the extent that) the agreement involved direct payment for sexual services. Most states followed suit, removing legal stigma and impediment from nonmarital cohabitation.

Those law reforms coincided with many other cultural changes (in entertainment, public opinion, demographics, etc.) favorable to cohabitation, and the resulting explosion in nonmarital cohabitation is not surprising. Now some reformers are calling for further legitimation of cohabitation by creating a new status called "domestic partnership" with the economic and legal incidents of marriage.

The "domestic partnership" movement is not the first time in legal history that a cohabitation has been treated like marriage. Domestic partnership is a modern version of what was called in civil law "concubinage." Concubinage gave certain legal status and economic rights to unmarried partners, especially mistresses of married men.

During the Roman Empire, concubinage was widely recognized but only existed as an inferior or secondary status to marriage and was afforded only certain types of legal recognition. The Roman concubine was a female cohabitor who never acquired the social or legal status of her male partner nor did the children of such a union.

Concubinage was acceptable even for married men but was distinguished from casual love affairs because of its more permanent nature. It continued as a recognized institution in Rome until Emperor Constantine forbade it; subsequent Christian emperors condemned the practice and it fell into disuse.

Concubinage, in our law, as in ancient times, has traditionally been viewed as a union between a man and a woman, living together as husband and wife but outside of marriage. Unlike marriage, it is not a civil contract and lacks the formalities required by our civil code. It differs from putative marriage in that the parties have no reasonable belief that they are married.5 Because it was not a socially beneficial relationship, most states repudiated concubinage.

The revival of concubinage in the form of "domestic partnership" does not bode well for the individuals who may find themselves in such relationships. "Cohabiting unions are much less stable than unions that begin as marriages. Marriages that are preceded by living together have 50% higher disruption rates than marriages without premarital cohabitation."6 Women in cohabiting relationships are more likely (at least twice) than married women to suffer physical and sexual abuse.7 Also, there are "far higher levels of child abuse [in cohabiting couples] than is found in intact families."8 Rates of domestic violence are higher and the type of violence more severe in nonmarital cohabitation.9 Two authorities have concluded that nonmarital cohabitation in the United States "has weakened marriage and the intact, two-parent family and thereby damaged our social well-being, especially that of women and children."10

Thus, the dramatic increase in nonmarital cohabitation poses a serious threat to the well-being of children and adults. Given those known risks, it is not unreasonable to ask whether the legalization of "domestic partnerships" threatens the integrity of marriage as well as public health.

Lynn D. Wardle is a Professor of Law at Brigham Young University School of Law and an expert on Family Law, Constitutional Family Law, and Comparative and International Family Law.

1. Genaro C. Armas, Census: Unmarried Couples Increase, The Associated Press, May 15, 2001, forwarded by CMFCE <http://www.smartmarriages.com/> (May 16, 2001).

2. Id.

3. Hilda Rodriguez, Cohabitation: A Snapshot, Center for Law and Social Policy, <http://www.clasp.org/pubs/familyformation/cohab.html> (seen May 29, 2001).

4. 557 P.2d 106 (Cal. 1976).

5. Succession of Bacot, 502 So.2d 1118 (La. Ct. App., 1987). See generally Kathryn Venturators Lorio, Concubinage and Its' Alternatives: A proposal For a More Perfect Union, 26 Loy. L. Rev. 1 (1980).

6. Rodriguez, supra.

7. David Popenoe & Barbara Dafoe Whitehead, Should We Live Together? What Young Adults Need to Know about Cohabitation before Marriage, A Comprehensive Review of Recent Research, at 7 (The National Marriage Project) <http://www.smartmarriages.com/cohabit.html>.

8. Id. at 8.

9. Ann E. Stets & Marray A. Straus, The Marriage License as a Hitting License: A Comparison of Assaults in Dating, Cohabiting, and Married Couples, 4 J. Fam. Viol. 161 (1989).

10 . Popenoe & Whitehead, supra at 16.