Cohabitation

Cohabitation, sometimes called consensual union or de facto marriage, refers to unmarried heterosexual couples living together in an intimate relationship. Cohabitation as such is not a new phenomenon. It has, however, developed into a novel family form in contrast with conventional marriage. Part of this change is associated with the absolute rise in cohabitational relationships. Since the 1970s, many countries, particularly those in North America and Europe, have experienced rapid growth in their cohabitation rates. Although these numbers generally remain small relative to families composed of married couples, the absolute numbers of cohabiting couples have increased dramatically. Cohabitation was obscure and even taboo throughout the nineteenth century and until the 1970s. Nonmarital unions have become common because the meaning of the family has been altered by individualistic social values that have progressively matured since the late 1940s. As postwar trends illustrate, marriage is no longer the sanctified, permanent institution it once was. The proliferation of divorce, remarriage, stepfamilies, and single parenthood has transformed the institution of the family. With these structural changes, attitudes toward nonmarital unions have become increasingly permissive.

Because cohabitation involves a shared household between intimate partners, it has characteristics in common with marriage. Similarities include pooled economic resources, a gender division of labor in the household, and sexual exclusivity. However, even though the day-to-day interaction between cohabiting couples parallels that of married couples in several ways, important distinctions remain. While some argue that cohabitation has become a variant of marriage, the available evidence does not support this position. Kingsley Davis (1985) points out that if cohabitation were simply a variant of marriage then its increased prevalence vis-à-vis marriage would lack significance. Sociologists treat cohabitation as a distinct occurrence not just because it has displaced marriage, but also because it represents a structural change in family relationships.

Cohabitational relationships are distinct from marital ones in several crucial ways. Although these differences have become less pronounced with the increase in cohabitation (and could thus eventually vanish), the following characteristics define the essential boundaries between cohabitation and marriage.

1. Age. People in cohabitational relationships tend to be younger than people in marital relationships. This supports the argument that cohabitation is often an antecedent to marriage. The majority of cohabitational relationships dissolve because the couples involved get married;
2. Fertility. Children are less likely to be born into cohabitational relationships than they are into marital relationships;
3. Stability. Cohabitational relationships are short-lived compared to marital relationships. In Canada, only about 12 percent of cohabitations are expected to last ten years. By comparison, 90 percent of first marriages are expected to last this long (Wu 2000). The majority of cohabitational relationships terminate within three years. Although many of these relationships end because of marriage, the lack of longevity in cohabitations as such illustrates that these relationships have yet to develop into a normative variant of marriage;
4. Social acceptance. Even with its numerical growth and spread throughout society, cohabitation is not as socially acceptable as marriage. Cohabitation is socially tolerated in part because it is expected that cohabiting partners will eventually become married. Indeed, according to U.S. data, about three-quarters of never married cohabitors had definite plans for marriage or believed they would eventually marry their partner (Bumpass, Sweet, and Cherlin 1991). The youthful profile of cohabitation shows that marriage is still the preferred choice of union for most couples. If cohabitation were a variant of marriage, it would have a larger prevalence in older cohorts. Although many people have chosen to delay marriage, most have not rejected it completely. A major reason cohabitations have lower fertility than marriage is because couples tend to abandon cohabitation when children are in the immediate future (Manning and Smock 1995). In most countries, marriage is perceived as the most secure and legitimate union when children are involved;
5. State recognition. Unlike marriage, cohabitation is not sanctioned by the state, and persons in nonmarital unions do not necessarily acquire specific legal rights and obligations through their union. Without a formal ceremony and legal documentation, a couple is not married even if they have lived together for many years. However, after a set period of time (usually one or two years), cohabiting couples are recognized as common-law partners in some countries. In such instances, common-law partners can have similar rights and obligations as they would in a legal marriage. Common-law marriage can parallel legal marriage in terms of child support and custody, spousal maintenance, income tax, unemployment insurance, medical and dental benefits, and pensions. The degree to which cohabitors are treated like legally married couples usually corresponds to the degree nonmarital unions are socially accepted. But even where cohabitors do have rights, these are often unknown to cohabitors and more complicated to exercise than they are for married persons. In many cases, the rights that cohabiting couples possess have been established by court decisions rather than by state law, as they are for married couples. Perhaps the most crucial legal distinction between these unions is the absence of shared property rights in common-law relationships. Married couples acquire shared property rights upon establishing their union, but cohabiting couples must do so through the courts. In sum, no uniform and guaranteed set of rights applies to cohabitation. This deficiency shows that in most countries, cohabitation is not yet perceived as a legitimate variant to marriage from the perspective of the state.

Trends and Patterns

Although sociologists treat cohabitation as a novel phenomenon, it is generally recognized that it has existed long enough to predate marriage. Until the mid-eighteenth century, the difference between marriage and cohabitation was unclear in many countries. In England, for example, the distinction between these unions remained fluid until Lord Hardwicke codified marriage in 1753. However, common-law marriage remained popular well after the passage of Hardwicke's Marriage Act. The lack of officials to oversee formal marriages and jurisdictional nuances kept marriage and cohabitation indistinct (Holland 1998; Seff 1995). Marriage really developed into the institution as we understand it today in the nineteenth century. During this period, marriage transformed from a more or less religious practice to one commonly formalized under civil law, and thus became the norm. But this should not be taken out of context. As Winifred Holland (1990) remarks, the family has always been a flexible organization and has responded to changing social circumstances in a dynamic manner, and marriage became the norm for specific historical reasons. Hence, it is incorrect to suggest that cohabitation is "deviant" behavior because this implies that marriage has always been the norm.

Although cohabitation has existed for a very long time, modern trends in cohabitation are qualitatively different from those of the past. The significance rests in the fact that cohabitation has increased in a context where conventional marriage is a clearly defined and dominant social institution. What sets contemporary patterns of cohabitation apart from historical patterns is not simply numerical preponderance. Cohabitation after the 1960s has special importance because it indicates a clear shift in normative behavior related to how families are formed and perceived. Although common-law unions were not unusual or contrary to social values before the nineteenth century, the same cannot be said about cohabitation in contemporary times. The lack of distinction between marital and non-marital union in England before the nineteenth century meant that cohabitation was not abnormal behavior. By contrast, today's nonmarital families represent a clear break from social convention.

Prevalence. One of the most salient facts about cohabitation is how much more prevalent it has become since the 1970s. In the United States, there were 523,000 households with two unrelated adults of opposite sex in 1970, compared with 1,589,000 in 1980—a 300 percent increase in just one decade (Spanier 1985). U.S. survey data on marital status and living arrangements indicate that cohabitation grew by 12 percent per annum between 1970 and 1980 (Davis 1985). This trend continued in the following decades. In 1990, there were 2.9 million cohabiting couples in the United States (Seltzer 2000), and the U.S. Bureau of the Census recorded over 4.2 million cohabiting households in March 1998.

Although these figures account for small percentages of the total pool of marital and nonmarital households, the increase in the number of people who have ever cohabited shows that cohabitation is a much more prevalent social trend than the proportional figures reveal. According to U.S. estimates of cohabitation, almost half of the population in their late twenties to early thirties had at some time been in a cohabitational relationship (Bumpass and Sweet 1989). Larry Bumpass and James Sweet's data also show that cohabitation has rapidly become an important antecedent to marriage. Of first marriages in the 1965–74 cohort, 9 percent of married respondents reported that they had cohabited with their future spouse. In the 1975–79 cohort, 26 percent had cohabited with their future spouse, and in the 1980–84 cohort, 34 percent had cohabited. In the 1990–94 cohort, almost 60 percent of all marriages formed had begun as nonmarital unions (Bumpass and Lu 2000).

In Canada, remarkable increases can be charted since 1981, the year in which the Canadian census began to record data on cohabitation. Over the period 1981–96, the number of cohabiting households increased from 356,600 to 920,640. Today, one in seven families is composed of unmarried couples in comparison to one in seventeen only fifteen years ago. As a percentage of all unions, cohabitations accounted for 13.7 percent in the mid-nineties, a significant difference over the 6.3 percent recorded in the early eighties. In the early 1970s, over 16 percent of all first unions were cohabitational relationships. By the late 1980s, more than 51 percent of Canadian first unions were cohabitational relationships (Wu 2000).

Similar patterns have been observed in many European countries. In Sweden, which has the highest prevalence of nonmarital union in the world, cohabitation has been the norm since the 1970s. For Swedes, cohabitation is nearly a universal experience—for example, 96 percent of married Swedish women had previously been in a cohabitational relationship by the late 1970s (Hoem and Hoem 1988). In France, about 65 percent of all first unions were cohabitational by the early 1980s, more than double the level of one decade earlier (Leridon 1990). In 1994, the percentage of unmarried cohabiting couples was about 10 percent of all family units in Denmark, 13 percent in Finland, and 9 percent in Iceland (Yearbook of Nordic Statistics 1996). In England, cohabitation before marriage grew from one in four in the 1960s to about seven in ten in the early 1990s (Kiernan and Estaugh 1993). Data show that these trends prevail throughout Western Europe. In rough correspondence with declining marriage rates, the Eurobarometer Surveys conducted in 1996 show a preference for cohabitation among youth. For women between the ages of twenty-five and twenty-nine, for example, 40 percent of first unions were cohabitations in Austria, 37 percent in Switzerland, and 46 percent in West Germany (Kiernan 2000).

Differentials. In a study of U.S. and Dutch couples, Geertje Wiersma (1983) points out that contemporary patterns of cohabitation are unique because they developed in circumstances characterized by individual choice. Previous patterns emerged mainly because of social prerogative or constituted an imperative, and because of this, cohabitation tended to be isolated to particular segments of society (e.g., the poor classes). Having come about in a context of free choice, contemporary cohabitation is not restricted to any subdivision of society. However, although cohabitation occurs across social categories, important differentials exist that affect its prevalence. Not all people have the same propensity to cohabit. Rates of cohabitation are influenced by factors such as age, gender, marital status, education, employment status, religion, and others. Certain people are selected into cohabitational relationships, or, in other words, cohabitors tend to be certain types, even though cohabitation has spread throughout society. Researchers have isolated numerous factors that determine the selection process. Among the many traits that affect who cohabits, the basic differences are characterized by age, gender, race, socioeconomic status, and personal attitude.

First, age is certainly the most important factor. Although cohabitation is found in every adult birth cohort, cohabitors are primarily selected from younger groups. U.S. census data shows that 38 percent of all cohabitors were between the ages of twenty-five and thirty-four and another 20 percent were between the ages of thirty-five and forty-four. At the other end, very few were in cohabitational relationships in the over-sixty-four group. This group accounted for only 4 percent of all households with two unmarried, unrelated adults (U.S. Bureau of the Census 1998). Comparable trends are visible in other countries. In England, the General Household Survey from 1989 recorded that more than 47 percent of cohabiting men and more than 39 percent of cohabiting women were between the ages of twenty-five and thirty-four. In sharp contrast, only about 7 percent of cohabiting men and 8 percent of cohabiting women were between the ages of forty-five and fifty-four (Kiernan and Estaugh 1993). In Canada, cohabitation is also rare in the older age cohorts. About 13 percent of cohabitations in 1996 were between the ages of forty-five and fifty-four, compared to 31 percent between the ages of twenty-five and thirty-four and 20 percent ranging from thirty-five to forty-four. However, like all cohorts, the older ones have become increasingly more likely to enter cohabitational relationships. In 1981, only a little over 4 percent of cohabitations involved those between the ages of forty-five and fifty-four, which means that the 1996 figure represents a threefold increase (Wu 2000).

Second, a greater proportion of men cohabit than do women. One would expect the numbers to be equal in this regard since every cohabitation includes one man and one woman. However, the higher prevalence of men is not calculated in terms of absolute numbers—it is a ratio of cohabiting men to the total male population. For example, the rate of cohabitation for Canadian men in 1996 was slightly more than 17 percent. For Canadian women the rate was about 15.5 percent. Evidence suggests that this trend has deepened over time. Men tend to marry women younger than themselves, and therefore enter marriage at later ages than do women. Men are thus selected into cohabitation at a greater rate than women because being unmarried longer places them at a greater risk of being drawn into a cohabitational relationship (Wu 2000).

Socioeconomic status is a third factor that affects who cohabits. Although cohabitation first came to scholarly attention because of the living arrangements of 1960s college students, these persons were the imitators, not the innovators (Cherlin 1992). It was been widely observed that lower education levels and poorer employment status positively affect the propensity to cohabit (Cherlin 1992; Raley 2000; Seltzer 2000; Smock and Manning 1997). Researchers argue that economic security is a key factor for the formation of marriages (e.g., Oppenheimer 1994). People from poorer backgrounds often delay marriage because of insufficient economic resources. This makes them more likely to form cohabitational relationships than well-educated people. U.S. evidence shows that of nineteen to forty-four-year-old women who have ever cohabited, the probability for high school dropouts was 60 percent versus 37 percent for college graduates (Bumpass and Lu 1999).

Fourth, many cohabitors are self-selected because of their personal attitudes toward nonmarital unions. Because cohabitation occurs against the norm, cohabitors are partially rejecting the society's dominant value system. Those people who enter cohabitational relationships tend to perceive social rules in flexible terms. On the other hand, people with traditional perceptions of the family and religious backgrounds that prohibit premarital unions are unlikely to enter into cohabitation because of their conservative values (Axinn and Thornton 1993).

Reasons for Cohabitation

Many observers have assumed that the trend toward cohabitation and later marriage signifies a breakdown of the traditional family. However, this standpoint rests on a limited understanding of family relationships. The notion of the traditional family is mostly a discursive construction, and, as such, it ultimately fails to comprehend the historical complexities of family relationships. For example, as Andrew Cherlin (1992) points out, the pattern of later marriage is anomalous only in comparison to the 1940 to 1960 marriage pattern. The men and women born between 1920 and 1945 married at earlier ages than any other cohort in the twentieth century.

The average age of first marriage in late twentieth century actually suggests a return to the pattern that prevailed at the turn of the century. Evidence given by Catherine Fitch and Steven Ruggles (2000) shows that, in 1890, the median age at marriage of white U.S. men was twenty-six and twenty-two for white U.S. women. From this longterm peak, the decline between 1890 and 1930 (which was especially large for men) was followed by a sudden, acute drop dating from about 1940 to 1960. By 1960, the average age of marriage for men was twenty-two and less than twenty for women. These ages have rapidly increased since the 1970s. By 1980, the average ages at marriage were about twenty-four and twenty-two, respectively; by 1990, about twenty-six and twenty-four. The key point here is that the timing of marriage can widely fluctuate in the long term. Such vicissitudes are not necessarily caused by the so-called breakdown of the family, but are usually symptomatic of specific historical conditions.

The notion that cohabitation somehow represents a collapse of the traditional family is inaccurate considering the historical prevalence of nonmarital union and broad shifts in the timing of marriage. Indeed, the intensification of cohabitation is associated with factors integral to the institutionalization of the nuclear family in the 1950s. According to Cherlin (1992), the pattern of early marriage prevalent in the late 1940s and the 1950s was partially caused by peace and prosperity, both of which released a social demand for marriage that had been suppressed by the Great Depression and World War II.

In the United States, the proliferation of the nuclear family was encouraged by governmentguaranteed mortgages, of which millions of families took advantage to purchase single-family houses outside of the cities. The postwar economic boom created a large, stable market of high-paying (family-wage) employment for men, and this made the nuclear family more or less self-sufficient. This period emphasized home and family life, which partly accounts for the baby boom, which followed the marriage boom. Many of the values associated with these trends were projected (and disseminated) through the popular media. Television programs such as Leave it to Beaver centered on Mr. and Mrs. Cleaver and their children and had little to do with grandparents, uncles, and aunts. The new focus on the nuclear family signified a disintegration of extended kin networks. The postwar retreat into the nuclear family marked the progressive development of individualism because it was a step away from group-oriented family life. As the bonds between individuals and wider kin networks weakened and even dissolved, people gradually began to seek meaning through more self-oriented goals and values, particularly those realized through spousal relationships (Cherlin 1992).

Cherlin (1992) remarks that there was no reason for individualism to stop at the nuclear family since personal fulfillment and family obligations could often conflict. Moreover, the general economic expansion, which made the nuclear family secure, also created a large job market for women. More and more women began either to delay marriage or to balance paid employment and family responsibilities because of high demand for their labor in the service sector. Women's new-found financial independence and the spread of more individual-centered values eventually contributed to the instability of marriage. Changes in social standards meant that people no longer felt as obligated to remain in unhappy marriages. Financial independence meant that they did not have to. Besides increasing the divorce rate, changes in postwar economics and ideas caused the rise in delayed marriage and cohabitation.

Gary Becker (1981) argues that a couple marries because they realize economic benefits from each other's specialized skills. These skills (which are rooted in the gender division of labor) created economic interdependence between men and women, and marriage became the institution that reproduced their economic security. According to Becker, the single most important factor underlying social transformation related to lower fertility, divorce, and cohabitation has been the rise in the earning power of women. An essential change in the gender division of labor has followed women's increased participation in the waged labor force. This change has reduced the economic advantages and necessity of marriage, and consequently, divorce rates have increased and marriage rates have decreased. The reduced benefits of marriage and the specter of marital instability have made nonmarriage more attractive. Reduction in the expected economic gains from marriage has made men and women more hesitant to enter marital unions, but a shared household still offers economic advantages. Cohabitations make good sense because they capitalize on the benefits of a shared household without the economic risks associated with marriage.

Valerie Oppenheimer (1994) explains patterns of cohabitation from another economic perspective. She suggests that rather than being a result of women's growing economic independence, the decline in marriage more closely relates to the deterioration of men's position in the labor market. Oppenheimer's theory holds considerable explanatory value because periods of early marriage have typically paralleled periods with strong labor markets. Oppenheimer argues that because marriage timing usually corresponds to men's ability to establish an independent household, reduction in their earning power temporarily prices them out of the marriage market. However, even though economic costs delay marriage, they do not affect the desirability of union as such, and because of its lesser costs, cohabitation has emerged as an important alternative to marital union.

Apart from economic explanations, changes in social norms bound up in the rise of individualism also explain the increase in cohabitation. Perhaps more than anything else, it is this shift in thinking that separates contemporary cohabitation from past. For the most part, trends in historical cohabitation were associated with the ambiguity between legal and common-law marriage, or with the availability of officials to formalize marriages. By contrast, contemporary cohabitation behavior is a conscious choice, one that expresses the tension that has developed between personal goals and social norms. In this respect, cohabitation has increased because marriage can often decrease or disrupt individual goal attainment.

Meanings of Cohabitation

First, in most instances, cohabitation serves as a transitional stage between single and married life. Cohabitation is perceived as a trial marriage that is meant to assess the viability of the partnership in the long term. In this sense, cohabitation is a pragmatic option because of its potential to weed out bad matches before marriage, with the putative intention being less chance of divorce. As noted above, the majority of cohabiting couples expect to transform their cohabitation into marriage, and most do. For example, cohabitation has rapidly become an antecedent to marriage in Britain. About 6 percent of British first marriages from 1965 to 1969 were preceded by cohabitation; in contrast, about 58 percent were preceded by cohabitation from 1985 to 1988. This trend has been more pronounced for remarriages. In the 1960s, about onequarter of all remarriages were preceded by cohabitation compared to more than two-thirds by the late 1980s (Kiernan and Estaugh 1993).

Second, cohabitation is also an alternative to marriage. In some cases, this means a renouncement of marriage. For most couples, however, cohabitation is not a rejection of marriage, but an alternative union that expresses the reality that marriage is not the defining characteristic of their family lives (Seltzer 2000). Cohabitation exists as an alternative when marriage is not immediately desirable, practical, or possible. Cohabitation requires comparatively less economic and social commitment, and it is generally regarded as more flexible and egalitarian than marriage. Hence, cohabitation is attractive to people who have personal goals that might be disrupted by marriage, or by people who cannot form a marriage for financial or legal reasons.

Third, some observers argue that cohabitation is an alternative to being single. Ronald Rindfuss and Audrey VandenHeuvel (1990) suggest that, although cohabitation is similar to marriage in some ways, it is also appropriate to compare it to single life. From this point of view, cohabitation occupies an intermediate position between singlehood and marriage. Although cohabiters obviously embrace some of the characteristics of marriage, such as shared household and sexual intimacy, in terms of fertility, non-familial activities, and homeownership, their behavior has more in common with single people than the married. Hence, Rindfuss and VandenHeuvel argue that cohabitation is not necessarily a premarital phase or an alternative to marriage, but can be an intensification of the dating experience.

Consequences of Cohabitation

Marital stability. Because cohabitation performs the function of a trial marriage, we would intuitively expect marriages preceded by cohabitation to be more stable than those not preceded by cohabitation. However, studies have shown that cohabitation negatively influences the quality and longevity of marriages (Axinn and Thornton 1992; Balakrishnan et al. 1987; Bennett, Blanc, and Bloom 1988). The higher incidence of divorce among former cohabitors has two basic explanations. First, the selection hypothesis suggests that same characteristics that make certain people most likely to enter cohabitation also make them most likely to divorce. People who cohabit before marriage generally have individualistic attitudes that make them less committed to marital union in the first place and more likely to seek divorce in response to marital problems. The experience hypothesis suggests that premarital union conditions cohabitors to accept divorce more readily. The cohabitation experience changes people's perspective on marriage and divorce because it emphasizes individual needs and demonstrates that there are alternatives to marriage.

Gender equality. Although the gender division of labor prevails within cohabitation, cohabiting couples may choose to organize this more equitably than is characteristic of marriage. Judith Seltzer (2000) notes that because cohabitation is often perceived as a trial marriage, women may select men who are willing to share domestic work. The desire for a fairer distribution of housework is pronounced for cohabiting women because many of them have paid employment outside of the home. However, although cohabitors profess more liberal gender attitudes, the reality is a different matter. According to Scott South and Glenna Spitze (1994), cohabitation and marriage do not differ significantly in terms of the gender division of labor. Cohabiting women do thirty-one hours of housework per week compared to thirty-seven hours for married women, and cohabiting men do nineteen hours per week compared to eighteen hours for married men.

Children. One of the essential purposes of marriage is procreation. If cohabitation is to develop into a viable alternative to marriage, then it must become a good environment for children to be born and raised. U.S. census data show that children are a significant presence in cohabitations. As of March 1998, approximately 35 percent of cohabitational households included children under fifteen (U.S. Bureau of the Census). Pamela Smock (2000) observes that an estimated 40 percent of children will live in a cohabitational household sometime during their childhood, which stresses the importance of understanding the effects that cohabitations have on children. Smock identifies two major issues facing these children. First, in general, cohabiting households have fewer economic resources than married households. Second, children in cohabiting households are likely to experience family instability because many cohabitational relationships terminate. Both of these matters have serious implications for the well-being of children who experience parental cohabitation.

Conclusion

Although cohabitation has existed throughout history, modern trends are especially important because they are part of a broader pattern of social transformation affecting the family. The institution of marriage remains the dominant form of family living, but the rapid increase in cohabitation suggests this could change. In the broad sweep of history, marriage has been dominant for a relatively short period. From this point of view, family institutions express the needs and values of society at a given time. As such, we must take care to perceive marriage in these terms. Marriage is not necessarily a permanent institution, nor is it the best form of family organization. The dominance of marriage over the past two centuries should not be taken as evidence that other forms of family living are immoral or illegitimate. If the decline in marriage rates and increase in cohabitation rates tell us one thing, it is that the family is a flexible institution. Given that the meaning of the family has shifted throughout history, it is simply inappropriate to rule out the possibility that nonmarital union will become the norm.

See also:Dating; Family Roles; Infidelity; Marriage, Definition of; Mate Selection; Nonmarital Childbearing; Resource Management; Sexuality; Singles/Never Married Persons; Socioeconomic Status; Work and Family

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Cohabitation

Sections within this essay:

Background

The law has not traditionally looked favorably upon individuals living together outside marriage. However, the law in this area has changed considerably in the past 40 years, and cohabitation has increased dramatically. In 1970, about 530,000 couples reportedly lived together outside marriage. This number increased to 1.6 million in 1980, 2.9 million in 1990, 4.2 million in 1998, and 5.5 million in 2000.

In some respects, unmarried cohabitation can be beneficial from a legal standpoint. Unmarried partners may define the terms of their relationship without being bound by marriage laws that can restrict the marriage relationship. When a relationship ends, unmarried cohabitants need not follow strict procedures to dissolve the living arrangement. Moreover, unmarried couples can avoid the so-called "marriage tax" in the Internal Revenue Code that provides a greater tax rate for unmarried couples than it does for two unmarried individuals (notwithstanding efforts to eliminate this penalty ).

On the other hand, unmarried cohabitants do not enjoy the same rights as married individuals, particularly with respect to property acquired during a relationship. Marital property laws do not apply to unmarried couples, even in long-term relationships. Moreover, laws regarding distribution of property of one spouse to another at death do not apply to unmarried couples. Children of unmarried couples have traditionally not been afforded the same rights as children of married couples, though most of these laws have now been revised to avoid unfairness towards offspring.

A fairly recent trend among both heterosexual and homosexual couples who live together is to enter into contracts that provide rights to both parties that are similar to rights enjoyed by married couples. In fact, many family law experts now recommend that unmarried cohabitants enter into such arrangements. Further changes in the laws may also afford greater rights to unmarried partners who live together. However, such arrangements may be invalid in some states, particularly where the contract is based on the sexual relationship of the parties.

Unmarried Cohabitation Compared with Marriage

Family laws related to marriage simply do not apply to unmarried couples. More specifically, marriage creates a legal status between two individuals that gives rise to certain rights to both parties and to the union generally. Unmarried cohabitants do not enjoy this status and do not enjoy many of the rights afforded to married couples. Thus, if a couple is married for two years, and a spouse dies, the other spouse is most likely entitled to receive property, insurance benefits, death benefits, etc., from the other spouse's estate. If an unmarried couple lives together for 20 years, and one partner dies, the other is not guaranteed any property or benefits.

Though many groups support legal reforms providing protection to unmarried cohabitants that would be analogous to laws governing marriage, very few such laws exist today. Unmarried cohabitants need to know what laws do exist in their state and cities and know what their options are regarding contractual agreements that may provide themselves rights that are analogous to marital rights.

Criminal Statutes

Laws prohibiting cohabitation and sexual relations outside marriage were very common until about the1970s. Though most of these laws have been repealed or are no longer enforced, they still exist in some state statutes. Eight states still have laws prohibiting cohabitation, which is usually defined as two individuals living together as husband and wife without being legally married. Nine states prohibit fornication, which is usually defined as consensual sexual intercourse outside marriage. More than 15 states prohibit sodomy, which includes any "unnatural" sexual activity, such as anal or oral sex. Several of these statutes apply specifically to homosexual activity.

While most of these criminal laws are clearly antiquated, they are sometimes enforced. In the United States Supreme Court case of Bowers v. Hardwick in 1986, the court upheld the enforcement of a criminal statute prohibiting sodomy between two homosexual men. Criminal statutes proscribing private sexual activity do not violate the federal constitution under Bowers, though some state courts have held that similar statutes are unconstitutional under the relevant state constitutions.

Legal Status and Discrimination

A person living as an unmarried cohabitant with another might face some form of discrimination. For example, an employer may expressly forbid employees from living together outside marriage and may terminate the employment of an employee who does cohabit with someone else outside marriage. Such discrimination in employment is not generally forbidden, either under federal law or under the laws of most states. Some state cases have, however, upheld the rights of individuals' cohabiting outside wedlock.

Acquisition of Property

Marital and community property laws govern the ownership of property acquired during a marriage. The characterization of property acquired by unmarried cohabitants is less clear. Some property acquired by unmarried couples may be owned jointly, but it may be difficult to divide such property when the relationship ends. Similarly, if one partner has debt problems, a creditor may seek to attach property owned jointly by both partners as if the partner owing the debt solely owned the property. Problems such as these are even more complicated if one partner dies without a will, since the surviving partner has no right to the other partner's property unless the property is devised to the surviving partner.

Children

Children born out of wedlock have not traditionally enjoyed the same legal protections as children born in wedlock. Such children were historically referred to as "bastards" in a legal context. Though many restrictions on illegitimate children have been repealed, legitimate (or legitimated) children still enjoy some rights that frustrate illegitimate children. This discrepancy is particularly clear with respect to inheritance. In most states, a child born in wedlock does not need to establish paternity to recover from the father. However, a child born out of wedlock generally must establish paternity before he or she can recover from the father.

Adoption

State laws have traditionally prevented unmarried couples from adopting children. Though some states have begun permitting unmarried couples to adopt, these couples still face difficulties. Married couples, on the other hand, are permitted to adopt and are usually preferred over unmarried individuals.

Eligibility for Benefits

Recent changes of policy by insurance companies permit unmarried couples to purchase life insurance policies on the life of the other partner or jointly purchase homeowners' insurance on a house owned by both partners. However, an unmarried couple will often have more trouble jointly obtaining automobile insurance covering an automobile owned by both partners. Similarly, unmarried couples continue to face serious problems with respect to health insurance family coverage paid or co-paid by an employer. A recent trend among some states, municipalities, and private employers is to extend benefits to registered "domestic partners."

Recognition of Domestic Partners

Several states and municipalities have adopted a system whereby unmarried cohabitants (heterosexual or homosexual) may register as "domestic partners." Other states and municipalities permit domestic partners to recover benefits. These classifications provide some rights that are analogous to marital rights, though these rights are certainly limited. The greatest benefit in registering as domestic partners is that each partner enjoys insurance coverage, family leave, and retirement benefits similar to married couples, though these rights are considerably more restricted than rights afforded to married couples. However, these rights are not generally recognized outside the jurisdiction that permits registration of domestic partners.

Common Law Marriages

A minority of states continues to recognize common law, or informal, marriages. Such a marriage requires more than mere cohabitation between a man and a woman. The couple generally must agree to enter into a martial arrangement, must cohabit with one another, and must hold themselves out as husband and wife to others. Parties that enter into such marriages enjoy the same rights as couples married in a formal ceremony, including rights related to insurance and other benefits, property distribution on dissolution of the marriage, and distribution of property upon the death of one spouse.

Proof that the marriage exists is often the most difficult aspect of a common law marriage, and this issue often arises after the relationship has ended either in death or divorce. For example, the question of whether a common law marriage exists may arise after one of the partners in a relationship dies and the other seeks to prove that the partners were informally married to receive property through the other partner's estate. Similarly, when a relationship ends, a partner may seek to prove that an informal marriage exists in order to seek property distribution under marital or community property laws.

Though a minority of states recognizes common law marriages, all states will recognize the validity of a common law marriage if it is recognized in the state where the parties reside, agreed to be married, and hold themselves out as husband and wife. Common law marriages apply only to partners who are members of the opposite sex.

Contracts Between Unmarried Cohabitants

Validity

Unmarried cohabitants can provide rights to one another that are analogous to rights granted to married couples by entering into a contract or contracts with one another. The validity of such agreements was the subject of the well-publicized case of Marvin v. Marvin in the California Supreme Court. In this case, the court held that an express or implied agreement between a couple living together outside wedlock to share income in consideration of companionship could be legally enforceable. The majority of states now recognizes these agreements, though many require that the agreement be in writing. Only a small number of recent cases have held that contracts between unmarried cohabitants are unenforceable.

When an agreement expressly includes consideration of sexual services provided by one of the parties, a court is more likely to find the contract unenforceable. For example, if one partner agrees to share his or her income in return for the other partner's love and companionship, a court may find that the contract implicates meretricious sexual activity and refuses to enforce the contract. Proving an oral agreement or an implied contract between unmarried cohabitants is also difficult, and several courts have refused to recognize such an agreement due to lack of proof.

Provisions of Written Cohabitation Agreements

Written cohabitation agreements usually involve financial and property arrangements. Parties can provide arrangements analogous to community or marital property laws or can provide other arrangements that are more favorable to the couple. Parties should consult with a lawyer prior to entering into such an agreement to ensure that the provisions are enforceable.

Wills and Durable Power of Attorney for Health Care

Nothing prevents unmarried cohabitants from leaving estate property to the other partner upon death in a will. Alternatively, intestate succession laws may not provide that any of the property will pass from one cohabitant to another, since intestacy laws are limited to marital and other family relationships. A fellow cohabitant might be able to get a share of the intestate's estate by arguing that the parties entered into a financial or property-sharing arrangement, though such claims are often difficult to prove. A will is generally the best method to ensure that a partner's property is given to the person he or she designates.

Another complicated situation can arise if one cohabitant is disabled and requires a guardian. To ensure that one partner is named guardian or is otherwise able to make decisions for the other partner, the parties can prepare a document providing durable power of attorney to the other partner. Under this arrangement, the person granted durable power of attorney could make healthcare decisions for the disabled person. Similarly, a party can draft a living will (also called a healthcare directive) that dictates the wishes of the party regarding life-prolonging treatments.

State and Local Provisions Regarding Cohabitation

Sixteen states recognize common law marriages, though several of these states have repealed their laws and only recognize these marriages entered into prior to a certain date. Several states and municipalities now recognize domestic relations rights, providing a registry, extension of benefits, or both. Unmarried cohabitants should check with the state and local laws in their jurisdictions to determine what rights may be available to them.

ALABAMA: The state recognizes common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.

ALASKA: The state does not recognize common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.

ARIZONA: The state does not recognize common law marriages. The cities of Phoenix and Tucson extend benefits to domestic partners.

ARKANSAS: The state does not recognize common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.

CALIFORNIA: The state does not recognize common law marriages. The following cities and counties extend benefits to domestic partners: Alameda County, Berkeley, Laguna Beach, Los Angeles, Los Angeles County, Marin County, Oakland, Petaluma, Sacramento, San Diego, San Francisco, San Francisco County, San Mateo County, Santa Cruz, Santa Cruz County, Ventura County, West Hollywood. The following cities and counties offer domestic partner registries: Arcata, Berkeley, Cathedral City, Davis, Laguna Beach, Long Beach, Los Angeles, Los Angeles County, Oakland, Palo Alto, Sacramento, San Francisco, Santa Barbara County, and West Hollywood.

COLORADO: The state recognizes common law marriages. The city of Denver extends benefits to domestic partners and provides a domestic partner registry.

CONNECTICUT: The state does not recognize common law marriages. The state extends benefits to domestic partners. The city of Hartford extends benefits to domestic partners and provides a domestic partner registry.

DELAWARE: The state does not recognize common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.

FLORIDA: The state does not recognize common law marriages. Broward County extends benefits to domestic partners and provides a domestic partner registry. The city of West Palm Beach extends benefits to domestic partners.

GEORGIA: The state recognizes common law marriages entered into before January 1, 1997. The city of Atlanta extends benefits to domestic partners and provides a domestic partner registry.

HAWAII: The state does not recognize common law marriages. The state extends benefits to domestic partners and provides a domestic partner registry.

IDAHO: The state recognizes common law marriages enter into before January 1, 1996. Neither the state nor any municipality in the state provides specific rights to domestic partners.

ILLINOIS: The state does not recognize common law marriages. The city of Chicago and Cook County extend benefits to domestic partners. The city of Oak Park extends benefits to domestic partners and provides a domestic partner registry.

INDIANA: The state does not recognize common law marriages. The city of Bloomington extends benefits to domestic partners.

IOWA: The state recognizes common law marriages. The city of Iowa City extends benefits to domestic partners and provides a domestic partner registry.

KANSAS: The state recognizes common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.

KENTUCKY: The state does not recognize common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.

LOUISIANA: The state does not recognize common law marriages. The city of New Orleans extends benefits to domestic partners.

MAINE: The state does not recognize common law marriages. The city of Portland extends benefits to domestic partners and provides a domestic partner registry.

MARYLAND: The state does not recognize common law marriages. The cities of Baltimore and Takoma Park and Montgomery County extend benefits to domestic partners.

MASSACHUSETTES: The state does not recognize common law marriages. The following cities extend benefits to domestic partners: Boston, Brewster, Brookline, Nantucket, Provincetown, and Springfield. The following cities provide domestic partner registries: Boston, Brewster, Brookline, Cambridge, Nantucket, and Northampton.

MICHIGAN: The state does not recognize common law marriages. The city of Kalamazoo, Washtenaw County, and Wayne County extend benefits to domestic partners. The cities of Ann Arbor and East Lansing extend benefits to domestic partners and provide a domestic partner registry.

MINNESOTA: The state does not recognize common law marriages. The city of Minneapolis extends benefits to domestic partners and provides a domestic partner registry.

MISSISSIPPI: The state does not recognize common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.

MISSOURI: The state does not recognize common law marriages. The city of St. Louis provides a domestic partner registry.

MONTANA: The state recognizes common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.

NEBRASKA: The state does not recognize common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.

NEVADA: The state does not recognize common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.

NEW HAMPSHIRE: The state recognizes common law marriages but only for inheritance purposes. Neither the state nor any municipality in the state provides specific rights to domestic partners.

NEW JERSEY: The state does not recognize common law marriages. The city of Delaware extends benefits to domestic partners.

NEW MEXICO: The state does not recognize common law marriages. The city of Albuquerque extends benefits to domestic partners.

NEW YORK: The state does not recognize common law marriages. The following cities and counties extend benefits to domestic partners: Brighton, Eastchester, Ithaca, New York City, Rochester, and West-chester County. The following cities provide domestic partner registries: Albany, Ithaca, New York City, and Rochester.

NORTH CAROLINA: The state does not recognize common law marriages. The city of Chapel Hill extends benefits to domestic partners and provides a domestic partner registry. The city of Carrboro also provides a domestic partner registry.

NORTH DAKOTA: The state does not recognize common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.

OHIO: The state recognizes common law marriages entered into prior to October 10, 1991. Neither the state nor any municipality in the state provides specific rights to domestic partners.

OKLAHOMA: The state recognizes common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.

OREGON: The state does not recognize common law marriages. The state extends benefits to domestic partners. The city of Portland and Multnomah County extend benefits to domestic partners. The city of Ashland provides a domestic partner registry.

PENNSYLVANIA: The state recognizes common law marriages. The city of Philadelphia extends benefits to domestic partners.

RHODE ISLAND: The state recognizes common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.

SOUTH CAROLINA: The state recognizes common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.

TENNESSEE: The state does not recognize common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.

TEXAS: The state recognizes common law marriages. Travis County extends benefits to domestic partners.

UTAH: The state recognizes common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.

VERMONT: The state is the first to recognize "civil unions," which extends rights to homosexual partners that are similar to rights granted to married couples. The state also extends benefits to domestic partners. The state does not recognize common law marriages.

VIRGINIA: The state does not recognize common law marriages. Arlington County extends benefits to domestic partners.

WASHINGTON: The state does not recognize common law marriages. The state extends benefits to domestic partners. The cities of Olympia and Tumwater and King County extend benefits to domestic partners. The city of Lacey provides a domestic partner registry. The city of Seattle extends benefits to domestic partners and provides a domestic partner registry.

WEST VIRGINIA: The state does not recognize common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.

WISCONSIN: The state does not recognize common law marriages. The city of Madison extends benefits to domestic partners and provides a domestic partner registry. The city of Sherwood Hills Village and Dane County extend benefits to domestic relations. The city of Milwaukee provides a domestic partner registry.

WYOMING: The state does not recognize common law marriages. Neither the state nor any municipality in the state provides specific rights to domestic partners.

Additional Resources

Cohabitation: Law, Practice, and Precedent, Second Edition. Wood, Helen, Denzil Lush, and David Bishop, 2001.

Family Law in a Nutshell. Krause, Harry D., West Publishing, 1995.

The Living Together Kit: A Legal Guide to Unmarried Couples, Ninth Edition. Ihara, Toni, Ralph Warner and Frederick Hertz, Nolo Press, 1999.

Understanding Family Law, Second Edition. DeWitt, John, Gregory, Peter N. Swisher, and Sheryl L. Wolf, LexisNexis, 2001.

Unmarried Couples and the Law. Douthwaite, Graham, Allen Smith Company, 1979.

Organizations

Alternatives to Marriage Project

P.O. Box 991010
Boston, MA 02199 USA
Phone: (781) 793-0296
Fax: (781) 394-6625
URL: http://www.unmarried.org/
E-Mail: [email protected]

American Association for Single People (AASP)

415 E. Harvard Street
Suite 204
Glendale, CA 91205 USA
Phone: (818) 242-5100
URL: http://www.singlesrights.com
E-Mail: [email protected]
Primary Contact: Thomas F. Coleman, Executive Director

Focus on the Family

Colorado Springs, CO 80995 USA
Phone: (719) 531-3328
Fax: (719) 531-3424
URL: http://www.family.org/

Lambda Legal Defense and Education Fund

120 Wall Street, Suite 1500
New York, NY 10005-3904 USA
Phone: (212) 809-8585
Fax: (212) 809-0055
URL: http://www.lambdalegal.org

COHABITATION

A living arrangement in which an unmarried couple lives together in a long-term relationship that resembles a marriage.

Couples cohabit, rather than marry, for a variety of reasons. They may want to test their compatibility before they commit to a legal union. They may want to maintain their single status for financial reasons. In some cases, such as those involving gay or lesbian couples, or individuals already married to another person, the law does not allow them to marry. In other cases, the partners may feel that marriage is unnecessary. Whatever the reasons, between 1970 and 1990, the number of couples living together outside of marriage quadrupled, from 523,000 to nearly 3 million. These couples face some of the same legal issues as married couples, as well as some issues that their married friends need never consider.

In most places, it is legal for unmarried people to live together, although some zoning laws prohibit more than three unrelated people from inhabiting a house or apartment. A few states still prohibit fornication, or sexual relations between an unmarried man and woman, but such laws are no longer enforced. Even in the early twenty-first century, some states continue to prohibit sodomy, which includes sexual relations between people of the same sex. Although these laws are rarely enforced, the U. S. Supreme Court upheld the constitutionality of these sodomy statutes as applied to same-sex couples in Bowers v. Hardwick, 478 U.S. 186, 106 S. Ct. 2841, 92 L. Ed. 2d 140 (1986). The Court reconsidered the same issue 17 years later, however, and decided that a Texas sodomy law that applied specifically to homosexual conduct violated the due process clause of the fourteenth amendment (lawrence v. texas, 539 U.S. ___, 123 S. Ct. 2472,156 L. Ed. 2d 508 [2003]). Advocates of gay and lesbian rights viewed the case as a victory for their cause.

The law traditionally has been biased in favor of marriage. Public policy supports marriage as necessary to the stability of the family, the basic societal unit. To preserve and encourage marriage, the law reserves many rights and privileges to married persons. Cohabitation carries none of those rights and privileges. It has been said that cohabitation has all of the headaches of marriage without any of the benefits. Cohabiting couples have little guidance as to their legal rights in such areas as property ownership, responsibility for debts, custody, access to health care and other benefits, and survivorship.

family law experts advise cohabiting couples to address these and other issues in a written cohabitation agreement, similar to a premarital agreement. The contract should outline how the couple will divide expenses and own property, whether they will maintain joint or separate bank accounts, and how their assets will be distributed if one partner dies or leaves the relationship. Property acquired during cohabitation, such as real estate, home furnishings, antiques, artwork, china, silver, tools, and sports equipment, may be contested if partners separate or if one of them dies. To avoid this, the agreement should clearly outline who is entitled to what.

When cohabiting couples separate, division of assets often becomes a contentious issue. In the past, courts refused to enforce agreements between unmarried couples to share income or assets, holding that such agreements were against public policy. In 1976, the California Supreme Court decided Marvin v. Marvin, 18 Cal. 3d 660, 134 Cal. Rptr. 815, 557 P.2d 106, holding that agreements between cohabiting couples to share income received during the time they live together can be legally binding and enforceable. The highly publicized suit between actor Lee Marvin and his live-in companion, Michelle Triola Marvin, was the first of a series of "palimony" suits that have become more numerous since the 1980s. The plaintiff in a palimony suit must prove that the agreement of financial support is not a meretricious agreement, that is, one made in exchange for a promise of sexual relations. Courts refuse to enforce meretricious contracts because of their similarity to contracts for prostitution.

The only way to guarantee that a valid agreement of support or division of property exists is to have it in writing. In the Marvin case, the plaintiff, who asked for $1.6 million, was awarded only $104,000. An appeals court revoked that amount and found that the plaintiff had failed to show that she and the defendant had an agreement (Marvin v. Marvin, 122 Cal. App. 3d 871, 176 Cal. Rptr. 555 [Cal. Ct. App. 1981]). Conversely, when tennis star Martina Navratilova separated from live-in lover Judy Nelson in 1993, Nelson filed a $16 million palimony suit, claiming that Navratilova reneged on a promise to share whatever the couple accumulated during their relationship. A signed and videotaped 1986 cohabitation agreement supported Nelson's claim, and Navratilova settled out of court for an undisclosed amount.

Cohabiting parents may face legal difficulties if they separate without a written parenting agreement. An unmarried father must acknowledge paternity by filing an affidavit with the state legitimating his child and establishing his parental relationship. Likewise, both parents must actively participate in the raising of the child in order to have a legitimate claim to custody or visitation. By legitimating their child and being involved in the child's upbringing, unmarried parents establish their right to seek custody or visitation if the family breaks up. Legitimation is also important for inheritance purposes. If an unmarried father dies without a will, his legitimated child can freely inherit his estate (see Trimble v. Gordon, 430 U.S. 762, 97 S. Ct. 1459, 52 L. Ed. 2d 31 [1977], which held that a signed statement establishing paternity of a child born out of wedlock is adequate protection of the child's inheritance rights). Of course, the best way to guarantee the distribution of assets to children is through a written will.

Cohabiting couples may face difficulties when one of them becomes ill and requires hospitalization or long-term care. The case of Sharon Kowalski and Karen Thompson illustrates this problem. Kowalski and Thompson lived together for four years before Kowalski sustained serious head injuries in a 1983 automobile accident. She was left paralyzed and seriously brain damaged, but able to communicate. Kowalski's parents refused to allow Thompson to see her or to participate in decisions about her treatment.

In 1984, Kowalski's father was awarded guardianship of Kowalski (In re Kowalski, 382 N.W.2d 861 [Minn. Ct. App. 1986] and the family continued to frustrate Thompson's efforts to see or assist Kowalski. In 1991, Kowalski's father voluntarily gave up his guardianship for medical reasons, and a Minnesota trial court awarded guardianship to Karen Tomberlin, a family friend whom the court considered a "neutral third party." The Minnesota Court of Appeals reversed the trial court, and after a seven-year battle, Thompson was finally granted guardianship of Kowalski (In re Kowalski, 478 N.W.2d 790 [Minn. Ct. App. 1991]). The court held that Kowalski had "sufficient capacity" to express her preference as to a guardian and that she had consistently said she wanted to be with Thompson. The court also noted the duration of the couple's relationship as well as the fact that they had exchanged rings and named each other as insurance beneficiaries before Kowalski's accident.

Cohabiting couples can avoid such conflicts by executing certain documents, including a durable power of attorney and a medical power of attorney. A durable power of attorney grants an unmarried partner the necessary authority to make decisions in the event of physical or mental disability of the other partner. It goes further than a general power of attorney in that it specifically allows one partner to continue making decisions even if the other partner becomes incapacitated. A medical power of attorney allows one partner to make decisions regarding medical treatment for the other. If the partners have specific instructions about funeral arrangements, these too should be put in writing. In addition, a written will or trust allows partners to specify the distribution of their property, including life insurance benefits, IRAs, and bank accounts. Partners may also name their preferred trustee or executor.

Many cohabiting heterosexual couples believe that the law will recognize their relation-ship as a common-law marriage with the legal protections and financial benefits of marriage. However, only Alabama, Colorado, the District of Columbia, Georgia, Idaho, Iowa, Kansas, Montana, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Texas, and Utah recognize common-law marriage. In those states, a man and woman who live together and represent themselves as married may be given common-law recognition. Once a common-law marriage has been established, it must be dissolved through divorce. Cohabiting couples who live in a state that recognizes common-law marriage and do not wish to be married should execute a statement that they are not married in order to avoid a later finding that a common-law marriage existed.

In the 1990s, a few courts began to recognize the familial ties of unmarried couples. In Braschi v. Stahl Associates, 74 N.Y.2d 201, 543 N.E.2d 49, 544 N.Y.S.2d 784 (1989), New York State's highest court found that a homosexual man and his deceased life partner had constituted a family for purposes of New York City's rent control ordinance. The court found that in this case, the term family should be construed broadly and should encompass contemporary realities, including unmarried adult partners in a long-term, committed relationship that shows mutual sharing of the mundane tasks of everyday life. Similarly, in Dunphy v. Gregor, 261 N.J. Super. 110, 617 A.2d 1248 (N.J. 1992), the court found that a woman who had witnessed the events leading to her fiancé's death had standing to sue for the emotional damage she suffered as a result. Previously, suits such as this (called bystander liability suits) were limited to those who were married or had blood ties to the victim. However, the court in Dunphy found that the plaintiff met the requirement of "intimate familial relationship," noting that the plaintiff and her fiancé had lived together for several years, that there was a high degree of mutual dependence in their relationship, and that they contributed to and shared a common life.

Since the 1980s, a growing number of states and municipalities have passed laws allowing unmarried couples, both heterosexual and homosexual, to register as domestic partners. Some cities have established a domestic partner registry, while others extend certain benefits to domestic partners even if the city does not provide a registry. The state of California leads the nation in the number of cities and counties that provide benefits to domestic partners, offer domestic partner registries, or both. Cities providing domestic partner benefits include New York City, Los Angeles, Chicago, Boston, and Philadelphia. The ordinances and statues in these cities allow couples to register as domestic partners, and to dissolve their partnerships if they separate.

Two 1995 court decisions declared particular domestic partner ordinances invalid. In Lilly v. City of Minneapolis, 527 N.W. 2d 107, the Minnesota Court of Appeals struck down a Minneapolis city council resolution authorizing reimbursement to city employees for health care insurance costs for same-sex domestic partners and for blood relatives not classified as dependents under state law. The court held that the resolution was beyond the scope of the council's authority and lacked legal force. Likewise, in City of Atlanta v. McKinney, 265 Ga. 161, 454 S.E.2d 517, the Supreme Court of Georgia held that the city of Atlanta had exceeded its authority when it had extended employee benefits to persons who did not qualify as dependents under state law.

Some same-sex cohabitants face other types of legal challenges. In Garcia v. Garcia, 60 P.3d 1174 (Utah Ct. App. 2002), the Utah Court of Appeals held that an ex-wife's involvement in a same-sex relationship constituted cohabitation for the purpose of determining whether the exhusband's alimony payments should be terminated. Under Utah law, a court's order requiring alimony payments from one spouse to the other terminates upon proof that the spouse receiving alimony is cohabiting with another person. The ex-wife allegedly maintained a long-term relationship with another woman, during which time she shared a common residency and had sexual contact. The trial court held that the statute's definition of cohabitation applied only to relationships between members of the opposite sex. The appeals court disagreed, holding that the term "sexual contact" in the statute also included such contact between members of the same sex, and reversed the trial court's decision.

further readings

American Bar Association. 1994. Family Legal Guide. New York: Random House.

Dailey, Patricia A. 1994. "Domestic Partnerships in the Nineties." Delaware Lawyer (summer).

Duff, Johnette, and George G. Truitt. 1992. The Spousal Equivalent Handbook: A Legal and Financial Guide to Living Together. New York: Penguin, NAL/Dutton.

Ihara, Toni, Robin Leonard, and Ralph Warner. 1994. The Living Together Kit. 7th ed. Berkeley, Calif.: Nolo Press.

Richardson, David G. 1993. "Family Rights for Unmarried Couples." Kansas Journal of Law and Public Policy (spring).

Samuels, M. Dee. 1995. "You Don't Have to Be Married to Be Legal." Compleat Lawyer (winter).

Wallman, Lester. 1994. Cupid, Couples, and Contracts: A Guide to Living Together, Prenuptial Agreements, and Divorce. New York: MasterMedia.

cross-references

Parent and Child.

COHABITATION

Cohabitation can be defined as a nonmarital coresidential union–that is, the relationship of a couple who live together in the same dwelling but who are not married to each other. Such relationships can also be called informal unions, since, unlike marriages, they are normally not regulated by law, nor is the occurrence of a cohabiting relationship officially registered. Cohabitation seems to be increasing in prevalence all over the Western world. The trend is regarded as an inherent part of the transformation of Western family patterns that has been called the second demographic transition. Less is known about cohabitation than about most other demographic phenomena. Detailed information about it, typically focusing on or limited to women only, comes mainly from surveys.

Levels and Trends

The Scandinavian countries have the highest levels of cohabitation in Europe. At the other extreme are the Southern European countries, together with Ireland. The rest of Europe falls in between. In the mid-1990s 32 percent of Swedish women 20 to 39 years old were cohabiting, and 27 percent of Danish women. In southern Europe less than 10 percent of women in this age group were cohabiting–in Italy, only two percent. Countries in the intermediate category show figures in the range 8 to 18 percent, with France, the Netherlands, Austria, and Switzerland at the high end, and Belgium, Great Britain, and Germany at the low end. Where cohabitation is well established, the first union is almost always a cohabiting union. (In Sweden, less than five percent of young women start their partnered life by getting married.)

Cohabitation in the United States has been increasing, both within cohorts and over time. By 1995 about a quarter of unmarried women between the ages 25 and 39 were living with an unmarried partner. This would place the United States near the lower end of the intermediate European group. Australia and Canada (with the exception of the province of Quebec, where cohabitation occurs more frequently than in the rest of the country) are similarly positioned, while New Zealand is at the upper end of that group.

Trends over time are difficult to assess. It seems likely that cohabitation started to become common in Sweden in the 1960s, followed by Denmark, and somewhat later by Norway. According to Ron Lesthaeghe, there was a second phase, roughly between 1970 and 1985, when premarital cohabitation spread from the Nordic countries to other parts of the developed world. Children born within cohabiting unions also first became a significant share within all births in the Nordic countries. There, by the 1990s, roughly half of all births were nonmarital. (Among first births in Sweden, two-thirds are non-marital; 84 percent of those are born to cohabiting parents.) Outside Scandinavia, except for a few countries (France, Austria, and New Zealand), cohabiting unions are typically childless. In both Sweden and Austria, the median age at first birth is lower than the median age at first marriage.

Cohabitation everywhere is most common among young people, primarily those in their twenties, but there is also a noticeable trend in many countries for older women increasingly to choose to cohabit instead of marrying after the dissolution of a marriage (postmarital cohabitation).

Cofactors and Explanations

In contemporary Western countries, many choices that were largely socially prescribed in the past have become options. This creates a new set of risks and a higher degree of uncertainty for individuals. New stages in the life course have emerged, resulting in a "destandardization" of family formation patterns. Cohabitation and living independently without a partner before moving into a couple relationship are such stages. Cohabitation can thus be seen as one component in a process in which individual behavior is becoming less determined by tradition and institutional arrangements and more open to individual choice.

It has been argued that those who cohabit desire something fundamentally different from a marital union. Cohabitors may demand more personal autonomy, gender equity, and flexibility; they may have chosen cohabitation in order to avoid binding commitments. However, these desires are likely to change over the life course. Cohabiting couples in Sweden tend to marry at a stage in their life course connected with a preference for union stability. This stage is usually reached after less than five years spent cohabiting and becoming a parent. Attitude surveys confirm that despite the existence of widespread and widely accepted nonmarital cohabitation (even when children are born into those unions), marriage remains a positive option among young adults in Sweden.

Demographers disagree on whether country differences in the prevalence of cohabitation are likely to disappear over time, or if they represent fundamental structural and cultural differences between societies that will persist. Within a society, diffusion theory can describe the spread of the practice. In a first phase, unmarried cohabitation is a distinct deviation from norms, practiced only by those who oppose the institution of marriage or have insufficient means for marriage. In a second phase cohabitation becomes a short-lived (and childless) introduction to marriage. Finally, when social acceptance for cohabitation has become established, cohabiting relationships of long duration become common, as well as childbearing within these unions.

Cohabitation, Union Dissolution, and Fertility

It is well known that cohabiting unions are more fragile than marriages. Differences seem to be most marked at short durations. It has also been shown that married couples who began their relationship by cohabiting face an increased risk of marital dissolution. It is likely that this is due to self-selection of more dissolution-prone individuals into cohabitation before marriage.

With the exception of Sweden, levels of cohabitational childbearing are low in most countries even when cohabitation is common. Within the foreseeable future it does not seem likely that marriage will be replaced by cohabitation as the preferred type of union for procreation. Antonella Pinelli and co-authors have found that cohabitation favors childlessness and postpones the arrival of the first child. Thereby it contributes to lower overall fertility. However, many cohabiting unions are transformed into marriages, and this favors fertility. These complex interrelationships make definite conclusions difficult. On the one hand, the weakening of the norms upholding marriage is likely to have some negative effects on fertility. On the other hand, in egalitarian countries with extensive institutional supports for parenthood, "modern" patterns of behavior, such as cohabitation, may be more compatible with fertility.

Legal Status

As of 2000 France and the Netherlands were the only countries to have instituted formal registration of partnerships for both heterosexual and homosexual couples, making registered cohabitation functionally and legally equivalent to marriage in most respects. Sweden, Denmark, and Finland have taken a more pragmatic approach to cohabiting couples. Over time family law has come to be applied to married and cohabiting couples in much the same way, without completely erasing the differences. For example, cohabiting couples do not automatically acquire inheritance rights on a partner's property, nor do they have the legal responsibility to provide for each other. However, the relationship between parents and their children is regulated in the same way for cohabiting couples as for married couples.

See also: Family: Future; Fertility, Nonmarital; Marriage; Second Demographic Transition.

bibliography

Bernhardt, Eva. 2002. "Cohabitation and Marriage among Young Adults in Sweden: Attitudes, Expectations and Plans." In Scandinavian Population Studies, Volume 13: Nordic Demography: Trends and Differentials. Oslo, Norway: Unipub Forlag.

Bumpass, Larry, and Hsien-Hen Lu. 2000. "Trends in Cohabitation and Implications for Children's Family Contexts in the United States." Population Studies 54(1): 29–41.

Duvander, Ann-Zofie. 1999. "The Transition from Cohabitation to Marriage: A Longitudinal Study of the Propensity to Marry in Sweden in the Early 1990s." Journal of Family Issues 20(5):698–717.

Kiernan, Kathleen. 2002. "The State of European Unions: An Analysis of FFS Data on Partnership Formation and Dissolution." In Partnership and Fertility: Unity and Diversity, ed. Miroslav Macura and Gijs Beets. New York and Geneva: United Nations.

Klijzing, Eric, and Miroslav Macura. 1997. "Cohabitation and Extra-Marital Childbearing: Early FFS Evidence." In Proceedings of the IUSSP General Conference, Beijing. Liège: International Union for the Scientific Study of Population.

Lesthaeghe, Ron. 1995. "The Second Demographic Transition in Western Countries: An Interpretation." In Gender and Family Change in Industrialized Countries, ed. Karen O. Mason and Ann-Magritt Jensen. New York: Oxford University Press.

Lillard, Lee A. et al. 1995. "Premarital Cohabitation and Subsequent Marital Dissolution: A Matter of Self-Selection?" Demography 32: 437–497.

Mills, Melinda. 2000. The Transformation of Partnerships: Canada, the Netherlands and the Russian Federation in the Age of Modernity. Amsterdam: Thela Thesis Population Studies Series.

Noack, Turid. 2001. "Cohabitation in Norway: An Accepted and Gradually More Regulated Way of Living." International Journal of Law, Policy and the Family 15: 102–117.

Pinelli, Antonella, Alessandra DeRose, Paola Di Guilio, and Alessandra Rosina. 2002. "Interrelations Between Partnership and Fertility Behaviours." In Partnership and Fertility: Unity and Diversity, ed. Miroslav Macura and Gijs Beets. New York and Geneva: United Nations.

Eva Bernhardt

Cohabitation

BIBLIOGRAPHY

Cohabitation is defined as a situation in which opposite-sex couples live together outside of marriage. Much of the literature on cohabitation is derived from research findings by sociologists and psychologists, which places this literature in a central position within the social sciences. This entry provides a brief discussion of who cohabits, why people choose to cohabit, and the consequences of cohabitation for couples, children, and society.

Cohabitation has become increasingly popular since the 1960s, with the majority of young adults in the United States experiencing cohabitation. For most couples, this is a relatively short-term experience, with only one-third of American couples cohabiting for at least two years and only 10 percent doing so for at least five years. About 60 percent of these unions eventually result in marriage. In 2007 nearly five million opposite-sex couples in the United States were living together outside of marriage, largely without legal protections, which is particularly problematic for female cohabitants. This compares to 500, 000 cohabiting couples in 1970.

This growing popularity of cohabitation has resulted in a concern among some observers that the practice presents a challenge to marriage as a method of coupling. They argue that marriage is being redefined as one of several choices. The literature suggests that for older cohabitants and for African American couples this lifestyle choice does represent an alternative to marriage. For most Americans, however, marriage remains the primary choice for coupling. Cohabitation is increasingly viewed as a transitional stage between single life and marriage, rather than as an alternative to marriage. Unlike in the United States, however, cohabitation is a significant alternative to marriage for young Scandinavian couples. In addition, increasing economic inequality in the United States is decreasing the opportunities for marriage among less-affluent Americans.

The most commonly cited reasons for moving in together are romance, convenience, the need for housing, and the chance to save money. How well do cohabitants get along with each other? Recent research has found that cohabiting couples are significantly less satisfied in their unions than those who are legally married. This is due, in part, to the fact that cohabiting couples often have more precarious economic circumstances than do married couples. In addition, the presence of children, which reduces satisfaction levels for both married and cohabiting couples, has a more profound effect on nonmarital unions. This is significant in that children are present for 40 percent of cohabiting couples. Further, it is widely assumed that the outcomes are worse for children raised by cohabiting couples, as opposed to children raised by married parents.

Lastly, does living with one’s partner prior to marriage increase the likelihood of success after marriage? Couples who move in together before marriage have up to two times the odds of divorce compared to those couples who do not live together prior to marriage (Blackwell and Lichter 2000). Some argue that living together creates social pressure to get married, which can contribute to poor mate selection.

SEE ALSO Family; Marriage

BIBLIOGRAPHY

Blackwell, Debra L., and Daniel T. Lichter. 2000. Mate Selection among Married and Cohabiting Couples. Journal of Family Issues 21 (3): 275–302.

Willetts, Marion C. 2006. Union Quality Comparisons Between Long-Term Heterosexual Cohabitation and Legal Marriage. Journal of Family Issues 27 (1): 110–127.

Paul R. Newcomb