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14 - Domestic Partnership and Default Rules

Published online by Cambridge University Press:  25 January 2010

Margaret F. Brinig
Affiliation:
Professor of Law, University of Iowa College of law
Robin Fretwell Wilson
Affiliation:
University of Maryland, Baltimore
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Summary

The domestic partnership chapter of the Principles “both over-and undershoots its target.” That is, by assuming cohabitation and marriage were similar, but only legislating for the limited purpose of dissolution, the Principles create a default rule that few would want. As may be obvious from their title, the Principles do not attempt to directly influence ongoing family relationships. Thus, “In view of the scope of these Principles, Chapter 6 is limited to the following question: What are the economic rights and responsibilities of the parties to each other at the termination of their nonmarital cohabitation? Chapter 6 does not create any rights against the government or third parties.” Unprotected parties who would marry if they were able to (and for whom the chapter was presumably intended) would not get enough relief because there would be no protection upon death of one of them, nor is there a requirement of mutual support during the relationship. This stands in contrast to the Canadian rule, as Canadian law still enforces the duty to support during the “common law” relationship. Moreover, parties who did not want to get married but wanted to cohabit would find themselves with a set of responsibilities on dissolution that they did not want to assume; if they had wanted these responsibilities, they would have married. Contrast this with Norway, where about 25 percent of couples are unmarried, but “[u]nlike married couples, cohabiting couples have no legal responsibility to provide for each other.

Type
Chapter
Information
Reconceiving the Family
Critique on the American Law Institute's Principles of the Law of Family Dissolution
, pp. 269 - 283
Publisher: Cambridge University Press
Print publication year: 2006

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