SHOULD COHABITATION MATTER IN FAMILY LAW?

Abstract

The following Article contends that the fact of cohabitation, in and of itself, should no longer be recognized as legally determinative in family law. Rather, cohabitation should be considered as one of many factors in determining which relationships are worthy of the legal perquisites that were traditionally afforded solely to married cohabitants. In order to make this argument, the Article explores three particular family law doctrines where some jurisdictions place legally significant weight on the mere fact of cohabitation. The first of these relates to the question of whether partners to a non-marital cohabitating relationship should be entitled to a share of property accumulated by either party during the period of cohabitation-the so-called Marvin doctrine. The second relates to the duty of financial support between spouses, and the fact that courts will not intervene to enforce that duty while the married couple is cohabitating. The third relates to any obligation of one former spouse to make maintenance payments to the other former spouse, and the impact that subsequent non-marital cohabitation with a new partner has on any ongoing duty of the obligor spouse to continue to make payments.