Cohabitation and the Law

Current Legal Status of Cohabitation in the U.S.

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The action of cohabitation itself was once illegal in several states and considered “living in sin”. Only recently in 2016, did Florida lift its ban on cohabitation (Sobel and Joyner). Cohabitation remains illegal in a few states today, including Michigan which has a law written in 1931 explicitly prohibiting cohabitation and misdemeanor charges of up to $1,000 fine or one year in prison (“The Michigan Penal Code”). While these laws are poorly enforced, when the individuals are brought before a court, they are still subject to them.

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Even though other states do not explicitly ban cohabitation, cohabitation cases are often unfavorably dismissed by the court with the individuals left to figure out the situation for themselves. There is very little legal protection for cohabiting individuals when it comes to inheritance, social security benefits, and health insurance. Third parties are free to deny cohabiting individuals simply because they are not married (Alvare). This places cohabitors in a dangerous situation where the dissolution of their relationship can be financially devastating to both parties. 

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Cohabitation, Common Law Marriage, Meretricious Relationships, Oh My…

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When it comes to the definition of cohabitation in court, things can get complicated and blurry, especially for long-term cohabitors who have shared financial responsibilities as well as guardianship over their children. As cohabitors, they have little to no legal support or rights that can enforce property distribution or continued child support. Thus, in these cases, it is critical to determine if their relationship qualifies as “married” and if marriage laws can be enforced and applied. 

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Cohabitation does not have a specific legal definition, though it is generally agreed upon as a relationship between two individuals characterized by sexual intimacy, common residence, and absence of marriage (Thornton 79). 

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Common law marriage is defined as “a legally recognized marriage between two people who have not purchased a marriage license or had their marriage solemnized by a ceremony” (Scherer and May). 

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Meretricious Relationship is defined as “a stable, marital-like relationship where both parties cohabit with the knowledge that a lawful marriage between them does not exist” (Thornton 80). 

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Common law marriages, (or de facto marriages) can grant cohabiting couples marital rights who publicly claim themselves as married without obtaining state licensure or formal solemnized ceremony. However, common law marriages are only recognized in eight states in the U.S. (Scherer and Alison). The precise definition and qualifications for common law marriage are still under question. 

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One exception is Washington State, which gives limited recognition of meretricious relationships, or “committed intimate relationships” instead of common law marriages (Thornton 80). The main difference here is that those meretricious relationships do not appear in public as married while common law marriages often do appear as married in public. In these cases cohabiting couples could gain the rights of married couples but its practice in court is still rare. 

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The Future of Cohabitation in the U.S.

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Young couples in the U.S. today are welcoming cohabitation as a socially acceptable form of relationship that allows them to build intimacy and experience living as a couple. It provides them with an opportunity to express and actualize their relationship desires. Some countries such as Canada and New Zealand, have already moved towards legalizing the rights of cohabitors (Waggoner 50). Others with a high population of cohabitors are starting to move in this direction as well.

 

In the U.S., organizations such as Unmarried Equality are fighting for the fair and equal treatment of people regardless of marital status, with a focus on the legal rights of singles and cohabitors.  In 2001, the American Law Institute proposed a new “domestic partnership” status that would automatically apply to cohabitors who meet its qualifications to be considered “living life together as a couple” (Alvare). Other similar law proposals have been made as well. Currently, these proposals have not been adopted by any state and cohabitation legal disputes are still resolved on a case-by-case basis. However, it is likely in the foreseeable future, that the U.S. will slowly start to grant legal rights to cohabitation as the number of cohabitors increases. One day, through the social liberation of cohabitation, individuals will no longer be bound by wedding vows and are free to take their intimate relationships whichever direction they choose with the law by their side.

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Works Cited

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Alvare, Helen. “U.S. Cohabitation Law: Still Separate and Unequal.” Institute for

Family Studies, Institute for Family Studies, 25 June 2019, ifstudies.org/blog/us-cohabitation-law-still-separate-and-unequal.

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Scherer, Sarah, and Alison May. “Common Law Marriage by State.” Common Law

Marriage by State, National Conference of State Legislatures, 11 Mar. 2020, www.ncsl.org/research/human-services/common-law-marriage.aspx.

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Sobel, Eleanor, and Arthenia Joyner. “SB 498 — Repeal of a Prohibition on

Cohabitation.” The Florida Senate, State of Florida, 2016, 

www.flsenate.gov/Committees/BillSummaries/2016/html/1208.

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“The Michigan Penal Code (Excerpt).” Michigan Legislature, Legislative Council,

State of Michigan, 2020, www.legislature.mi.gov/(S(000opirdohaoz5pcxtobknao))/mileg.aspx?page=getobject&objectname=mcl-750-335&queryid=18874077&highlight=cohabitation.

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Thornton, et al. Marriage and Cohabitation. University of Chicago Press, 2007.