Marriage Against Their Will

Abstract

This article addresses the regulatory regime governing the relationships between unmarried cohabitants. In the article I challenge the conventional divide between conservative and liberal approaches: on one hand, moral condemnation of non-marital conjugal relationships and public policy in favor of marriage lead conservatives to reject the application of marriage law to cohabitating partners. On the other hand, drawing on principles of freedom, tolerance and equality, liberals tend to equate the mutual legal commitments of cohabitants with those of married partners. I break with conventional analysis by offering a novel liberal model that separates between the mutual obligations of cohabitants and married partners. The proposed model is based on a pluralist constitutional theory that underscores the responsibility of the liberal state to create a range of social institutions that offer meaningful choices to individuals. The article thus argues that the law should develop two distinctive legal regimes-one for marriage and another for cohabitation - and provide couples with substantive freedom to choose between them. The article offers arguments rooted in morality and efficiency to support the proposed bipolar default systems and the role of marriage as screening mechanism. It further delineates the refinements and limitations necessary to address liberal objections to the distinction between marriage and cohabitation within the pluralist approach. Hence, the article offers a detailed and comprehensive legal model that unlike existing all-or-nothing approaches, selectively applies marriage law to cohabitation and distinguishes between different types of cohabitants.The article further illustrates how the pluralist theory goes well beyond standard cohabitation law to provide a framework for an innovative spousal relationship regulation. It demonstrates the potential contribution of such a framework by analyzing three publicly disputed topics: same-sex marriage and civil unions; covenant marriage; and secular regulation of religious marriage.