The meaning of marriage, and how it regulates intimate relationships, has been at the forefront of recent scholarly and public debates. Yet despite the attention paid to marriage—especially in the wake of Obergefell v. Hodges—a record number of people are not marrying. Legal scholarship has mostly neglected how the law regulates these nonmarital relationships. This Article begins to fill the gap. It does so by examining how courts distribute property at the end of a relationship that was nonmarital at some point. This inquiry provides a descriptive account to a poorly understood and largely under-theorized area of the law. Analyzing property disputes offers a unique perspective: courts must assess the nature of the relationship and assign a value to the contributions made by each party. Considering various types of nonmarital relationships together—including unmarried couples who were also married at some point—shows that courts draw the line between marriage and nonmarriage inconsistently. Some courts only distribute property at the end of a relationship that looked just like a marriage; other courts require the exact opposite, refusing to distribute property in a relationship that approached, but never became, a marriage. Despite these inconsistencies, one very clear trend emerges: the individual seeking property, who in nearly all cases is a woman, has a difficult time receiving anything outside of marriage. This analysis further reveals how courts actively define marriage in deciding whether and how to distribute property in relationships that are not marital. Given the problematic picture of modern marital and nonmarital relations that materializes, this Article calls for moving beyond the marriage-nonmarriage dyad in allocating property rights between individuals who are not, or have not been, married.
Antognini, Albertina, "The Law of Nonmarriage" (2017). Law Faculty Scholarly Articles. 599.