英文婚姻同居和从属共同责任Scot

1 To: Faculty From: Elizabeth Scott Paper for lunch talk on Thursday, November 25. This essay will be published as part of a University of Chicago Legal Forum Symposium volume on “The Public and Private Faces of Family Law.” It is at a relatively early stage – I apologize for its rough condition and sketchy footnotes. I welcome your comments. 1A Gallop survey in 2001 found that 87% of 20-29 year olds thought they would marry. National Marriage Project, The State of our Unions: The Social Health of Marriage in America 2001. In another survey, 80% of high school girls reported that having a good marriage is extremely important to them. National Marriage Project, The State of our Unions: T he Social Health of Marriage in America 1999 . 2 Approximately 40% of adults live in non-marital family units, Axinn & T hornton, in W aite, The Tie That Binds (1996) Between 1980 and 2002, the total number of cohabiting heterosexual couples in the United States more than tripled, from 1,589,000 to 4,898,000. U.S. Census Bureau, Table HH-1. Households by T ype:1960-Present, June 12, 2003 (available at: http://www.census.gov/population/www/socdem2002/hh-fam/tabHH1.csv. [During that time the number of marriages increased from 49,112,000 to 56,747,000 . The 2000 Census also reported almost 600,000 same sex couples. Approximately 1.35 million children were born to unmarried women in 2000, up more than 15% from 1990 . According to one study, 40% of births to unmarried mothers between 1990-94 were to cohabiting couples. Bumpass & Liu, Trends in Cohabitation and Implications for Children’s Family Contexts in the United States, 54 POPULATION STUDIES. 29 (2000) An comprehensive demographic summary of changes in family form can be found in IRA ELLMAN ET PAU L KURTZ & ELIZABETH SCOTT, FAMILY LAW : CASES, TEXT, PR O BLE M S 4 th Ed._ (2004). For a description of these trends that concludes that they are worldwide, see Judith Bruce, et. al., Families in Focus (1995). 2 Draft 10\30\03 Marriage, Cohabitation and Collective Responsibility for Dependency Elizabeth S. Scott Marriage has fallen on hard times. Although most Americans say that a lasting marriage is an important part of their life plans,1 the institution no longer enjoys its former exclusive status as the core family form. This is so largely because social norms that regulate family life and women’s social roles have changed. A century (or even a couple of generations) ago, marriage was a stable economic and social union that for the most part lasted for the joint lives of the spouses; it was the only option for a socially sanctioned intimate relationship and the setting in which most children were raised. Today, when about 40% of marriages end in divorce, marriage is a less stable relationship than it once was. It is also less popular; many couples choose to live in informal unions instead of marriage and many children are raised by unmarried mothers, other family members, or by unmarried straight and gay couples.2 These changes pose a challenge to foundational policies of family law. Formal marriage is a privileged legal status that receives substantial government protection and benefits, and is 3 Individuals have dependency needs at various stages of life, most notab ly childhood and old age. Illness and unemployment also create dependency. Martha Fineman has identified two categories of dependency, direct and derivative dependency. The latter is the dependency of caretakers (particularly mothers) who can not be self sufficient economically because of their caretaking ro le. MARTHA ALBERTSON FINEMAN , THE NEUTERED MOTHER , THE SEXU AL FAM ILY, AND OTHER TWENTIETH CENTURY TRAGEDIES 228-30(1995); Fineman, Cracking the Foundational Myths: Independence, Autonomy and Self-Sufficiency, 8 AM . U. J. GENDER , SOC. POL. & L. 13 (2000). 4Fineman, Contract and Care . Other critics of the privileged status of the nuclear family based on marriage include Nancy Polikoff, Anne Shalleck, Judith S tacey, In the Name of the Family. 5This is part of a larger debate over the appropriate legal response to functional families generally. See infra note _ . 6 American Law Institute, Principles of the Law of Family Dissolution, Ch. 6, Domestic Partnerships. The A.L.I. P rinciples only deal with inter se disputes and not with government benefits. 3 also defined by many legally enforceable rights and obligations between the spouses. In a world in which marriage no longer functions as well as it once did to provide care for children and to serve other family dependency needs,3 it is quite appropriate to ask whether the special legal status of marriage can any longer be justified. This issue has been the focus of a heated debate in academic and policy circle. On one front, many feminists claim that marriage, the source of women’s subordination, is an outmoded institution that increasingly is not the preferred family form.4 Martha Fineman, a leading marriage critic, argues that the privileged legal status of marriage should be abolished in favor of a family unit more deserving of legal protection– the mother-child dyad. Other critics contend that, in an era in which family arrangements are understood to be a matter of private choice, cohabitation unions and marriage should be subject to the same legal treatment.5 In this vein, the American Law Institute proposes that courts should impose the financial rights and obligations of marriage on cohabiting parties when their relationships end.6 On the other side of the debate are highly visible defenders of marriage, who generally tend to be social and political conservatives, often with a religious or moral agenda. These advocates make apocalyptic claims about the negative impact of the decline of marriage on social 7Gary Bauer; Pat Robertson; Charles Murray, “The Coming White Underclass” Wall Street Journal, Oct. 29, 1993 at 14 (‘[I]llegitimacy is the single most important social problem of our time...”); Barbara Whitehead, “Dan Quale was Right” Atlantic (1993); Blankenhorn,, Buchanan. Also among those who argue for the benefits of marriage are sociologists such as Steven Nock, Paul Amato and Norval Glenn, whose claims are based on substantial empirical evidence. STEVEN NOCK, MARRIAGE IN MEN’S LIVES ; Amato “Good Enough Marriages” VA. J. SOC. POL. & L. (Other cites by Nock & Glenn) 8 At the heart of the pro-marriage movement are fundamentalist Christians who advocate a return to traditional marriage on religious and moral grounds. Gary Bauer, Falwell. 9Covenant marriage statutes, which allow couples entering marriage to opt out of no-fault divorce standards, have been enacted in three states. For a discussion of the marriage movement and a study of attitudes toward covenant marriage, see generally Hawkens, et. al, Attitudes about Covenant Marriage and Divorce: Policy Implications of a Three State Study, 51 Family Relations 166 (2002). Many feminists have opposed covenant marriage. See Barbara Ehrenreich, Katha Pollitt. 10See t.a.n. _ to _ infra. 11Some advocates for the rights of gay and lesbian persons challenge this policy goal. See Polikoff, supra. Note _. 4 welfare. Many reject the legitimacy of alternative family forms and aim to restore traditional marriage.7 They can fairly be charged with seeking to impose a moralistic vision of the good life on the rest of society.8 In the policy arena, a “marriage movement,” populated mostly by religious and social conservatives, has dominated the recent legislative initiatives to promote covenant marriage and revive fault-based divorce.9 Adding a layer of complexity to the debate is a third interest group with a distinctive agenda– those seeking to extend the privileges of marriage to same-sex couples.10 This group does not challenge the privileged status of marriage, but rather argues that, as long as the special status continues, same-sex couples should have the right to enjoy the tangible benefits that marriage confers as well as its symbolic social importance.11 On first inspection, those who oppose perpetuating the favored legal status of marriage would seem to have the better arguments. They sensibly acknowledge that the legal regulation of family relationships must respond to changing social values and behavior. Moreover, the 12I assume that society has this collective responsibility. Libertarians and some social conservatives might disagree with this claim. 5 feminist contention that marriage historically has been the source of women’s subordination is hard to refute, and the concern that the privileged status of marriage harms other families must be taken seriously. If legal marriage simply rewards couples who adapt their behavior to a socially conservative norm, then the argument that fairness, tolerance and social welfare would be promoted if marriage were “de-privileged” has considerable force. In this essay, I offer a modest defense of the privileged legal status of formal marriage (as I will define this union) and legal neutrality toward informal intimate unions. My claim is that the special treatment of marriage can be justified, even if one has no nostalgic fondness for traditional family roles and rejects the moral superiority of marriage over other family forms. Through marriage, government can delegate to the family some of society’s collective responsibility for dependency.12 Retaining its privileged legal status in a contemporary setting can (and should) be part of a comprehensive policy of family support that acknowledges the pluralism of modern families. In my framework, the government is justified in channeling intimate relationships into marriage because formal unions function as a useful means of providing care in a family setting. The availability of legal marriage allows couples to declare their commitment and choose a formal status with a package of clearly defined and enforceable legal rights, privileges, and obligations that embody that commitment. Even in an era of high divorce rates, marriage represents a relatively stable family form, partly because of its formal status and partly because it is regulated by a powerful set of social norms that reinforce commitment. Moreover, within a properly structured legal framework, even marriages that end in divorce can serve quite 13For a discussion of default rules regulating divorce generated in a hypothetical bargain framework, see Elizabeth Scott & Robert Scott, Marriage as Relational Contract, 84 VA. L. REV.1225 (1998). A similar model can be applied to the cohabitation context. 6 effectively to provide a measure of financial security for dependent family members. Informal unions, in contrast, are a less reliable family form because the behavioral expectations and financial obligations between the parties are uncertain and legal enforcement is difficult. Government privileging of marriage and neutrality toward informal unions does not mean that financial understandings between parties in cohabitation relationships should be unenforceable. To the contrary, I argue that contract theory supports a default rule framework that presumes that property acquired during long term cohabitation unions is shared and that support is available to dependent partners.13 Default rules which reflect the implicit understandings of most couples in these unions will mitigate the harsh inequity that results today when courts decide that parties’ understandings are too ambiguous for contractual enforcement. This autonomy-based framework is superior to the approach of the A.L.I. Principles, under which an unchosen status is imposed on unmarried couples. A road map may be helpful. Part I begins with a description of the case against marriage and a preliminary response to the critics. In Part II, I argue that marriage functions relatively well as a family form that can satisfy dependency needs, both because of its stability and because obligations between the parties are specified ex ante with some certainty. These advantages, which are underscored by a comparison with informal unions, justify the legal privileging of marriage. I then turn in Part III to the enforcement of obligations in cohabitation unions and argue for a default rule framework that presumes marriage-like understandings about property and support in long term unions. 14Income tax benefits; deductions\ credits; estate and gift tax benefits; law of intestate succession; TANF, Family Leave Act; residential zoning restrictions; rent control regulations. Social Security survivor benefits; government health insurance; pensions, etc . See d iscussion that of marital benefits, infra note _. 15Frances Olson, Constitutional Law: Feminist Critiques of the Public\Private Distinction, 10 Constit. Commentary 319 (1993) Fineman, The Neutered Mother, supra note_ 7 I. Is Marriage an Obsolete Institution? A. The Challenge No one contests that families should have a protected legal status– at least not in the debate that I am entering. As law students recognize on the first day of class in family law, the special status of families in law is readily justified because family members provide care and support to one another, reducing the burden that society would otherwise bear in caring for children and for adults who are unable to provide for basic needs due to illness, disability or advanced age. The government recognizes the useful role of families through direct and indirect subsidies, programs that support particular family functions, and policies that benefit families (or particular types of families).14 Even in an earlier era when law makers insisted that families occupied a private sphere and that government bore no responsibility for dependency, the legal regime strongly supported traditional marriage and harshly sanctioned other family forms.15 This stance can be fairly criticized for excluding from legal protection some relationships that fulfilled the social function of families, but the fact that marriage was privileged on this basis in itself is unsurprising. Contemporary critics of marriage do not aim to deprive family of its privileged status; their goal is simply to shift or extend legal support and privilege to other family forms. Thus, the contested issue is whether marriage, a particular family form that once had monopoly status, deserves continued deference, in an era in which other groups fulfill the 16Fineman, Shaking the Foundations; Shanley, Unwed Fathers’ Rights, Adoption and Sex Equality: Gender Neutrality and the Perpetuation of Patriarchy, Col. L. Rev. 60 (1995). 17Fineman Contract and Care, supra note_. 18 Arguments for legal recognition of functional families have focused generally on relationships outside the traditional legal categories. These include both adult couples in informal unions and de facto parent-child relationships. Martha Minow, Redefining Families: Who’s In and W ho’s Out? 62 Colo. L. Rev. 268 (1991); Katherine Bartlett, Va. L. Rev. 19Divorce rates reached a peak of near 50% in the early 1980s. Since then, they have declined and stabilized at about 40%. See Hawken, et. al., supra, note_. 20 See research described in Robert Emery, Marriage, Divorce and Children’s Adjustment (1999); Paul Amato and Alan Booth, A Generation at Risk(1997). Most research on the impact of divorce on children indicates 8 function of family care. Two kinds of challenges are raised. First, marriage is rejected as obsolete; it is described as a union that once was dominant but that has been (or is being) supplanted by other family forms. Second, critics argue that marriage can not escape its history as a patriarchal institution that oppressed women who married and harshly discriminated again those who did not –especially unmarried mothers.16 The first critique holds that the utility of marriage as a viable family form has declined too much for it to retain a privileged legal status. Even if marriage once functioned as a useful mechanism to meet society’s dependency needs, this is not longer true, because of the dramatic social changes of the second half of the 20th century.17 Law should adapt to these changes by protecting all relationships that serve the functions of families and abandoning its elevation of the status of formal marriage.18 These social developments and their implications for the status of marriage warrant a bit more attention. First, feminist commentators point to divorce rates of forty per cent as evidence that contemporary marriage no longer functions as a reliable setting for childrearing or for the satisfaction of other family dependency needs.19 Divorce is associated with many psychological and economic costs to children,20 and spouses who dissolve their marriage will not be available that children are worse off after divorce unless divorce allows them to escape high levels of interparental conflict. See generally, research described in Scott, Divorce, Custody and the Culture Wars, 9 Va. J. Soc. Pol. & L. 95 (2001). 21See note 2, supra. MacLanahan & Sandefur. 22See Minow, supra note _; Braschi v. Stahl Assoc., 543 N .E. 2d 49 (N .Y. 1989)(applying functional family definition to same-sex partner of decedent tenant under New York rent control law). Courts have also recognized claims by de facto parents to continued relationships with children with whom they have lived in a functional family. See discussion in Ellman, Kurtz, & Scott, supra note at_. 9 to care for each other in old age. In short, marriage is so unstable, critics contend, that it is not serving the needs even of married couples and their children. Moreover, increasing numbers of children are reared outside of marriage, usually by their mothers, sometimes in extended families or in families that include fathers or de facto parents.21 Fineman and others point to these demographic trends as evidence that the importance of marriage as a context for child rearing has declined. Given that the special legal status of the family and its claim to government support rest largely on its child rearing function, marriage no longer deserves the privilege that it has received traditionally. Other critics challenge the sharp legal distinction between marriage and cohabitation on both utilitarian and fairness grounds. The number of couples who live together in informal unions has increased steadily over the past half century and mainstream society today is morally neutral toward this form of intimate association. In light of these developments, law makers increasingly are urged to extend legal privileges to unmarried couples on the ground that these relationships fulfill family functions and deserve the legal benefits and privileges that mostly have been limited to married couples.22 This demographic trend has led to several law reform initiatives in recent years. Canada has led the way in extending marital rights and benefits to parties in informal unions, and other 23 Beginning in the 1970s, some Canadian provinces provided for financial support when informal unions dissolve. British Columbia, Ontario statutes. The Canadian Supreme Court recently held that government benefits extended to married couples could not be withheld from same sex couples. Cite. In New Zealand, financial support and property claims are recognized when unions of three years duration dissolve. See also Domestic partnership statutes in Denmark, Sweden, France. . 24Nan Hunter, W ILLIAM ESKRIDGE, THE CASE FOR SAME SEX MARRIAGE (1996); David Chambers, The Legal Consequences of Marriage and the Legal Needs of Lesbian and Gay Male Couples, 95 Mich. L. Rev.447 (1996); Michael Wald, Same Sex Marriage: A Family Policy Perspective, 9 Va. Soc. Pol. & Law