Default property rules for same-gender marriages: equivalence over equality?

Abstract

Abstract More and more jurisdictions accept that marriage should be open for all couples, both different and same gender. While this identical application of marriage as an institution is not open for debate, differences between same-gender couples and different-gender couples may have some value as to the precise content of marital property rules. Existing research finds that same-gender couples better represent the modern-day relationship model of equal role distribution, as they pursue a more egalitarian division of household labour and a greater individualization of finances than different-gender couples. Nevertheless, marital property rules have exclusively been shaped by the perspective of and inequalities experienced by (traditional) different-gender couples. The resulting heteronormative rules impose a degree of solidarity and protection that same-gender couples may not desire or need. Through 12 interviews, we carry out a first step in exploring the patrimonial wishes and needs of same-gender couples. We find that multiple interviewees prefer more autonomy during their relationship, while there is a preference to share assets upon a break-up or divorce. Consequently, we argue that a separation-based regime with a participation in the assets accumulated during the relationships offers a more appropriate property regime for same-gender couples than a community-based regime. While additional research is essential, the current findings could already offer arguments in further refining the current default regime for all married couples.