To the degree that there is a scholarly debate about the growth of cohabitation, it is typically polarized into “for” and “against” without much concern for the nuances. On one side is the religiously inspired view that living with someone outside of marriage, indeed all premarital sex, represents an assault on the sanctity of marriage. If you are ready for sex you are ready for marriage, the argument goes, and the two should always go together, following biblical injunction. This side is typically supportive of early marriage as an antidote to sexual promiscuity, and as worthwhile in its own right. The other side, based in secular thought, holds that we can’t realistically expect people to remain sexually abstinent from today’s puberty at age eleven or twelve (even earlier for some) to marriage in the late twenties, which is empirically the most desirable age for insuring a lasting union. Therefore, it is better that they cohabit during that time with a few others than be promiscuous with many. This side also finds the idea of a trial marriage quite appealing. Modern societies in any event, the argument goes, have become so highly sexualized and the practice of cohabitation has become so widely accepted that there is no way to stop it. The anti-cohabitation perspective believes in linking sex to marriage, but fails to answer the question of how to postpone sex until marriage at a time when the age of marriage has risen to an average of almost 26, the highest in this century. Cold showers, anyone? Nor is there evidence to support the idea that marriage at a younger age is a good solution. On the contrary, marrying later in life seems to provide some protection against divorce. Teenage marriages, for example, have a much higher risk of breaking up than do marriages among young adults in their twenties. The reasons are fairly obvious; at older ages people are more emotionally mature and established in their jobs and careers, and usually better able to know what they want in a lifetime mate. Pro-cohabitation arguments recognize the demographic and social realities but fail to answer another question: if the aim is to have a strong, lifelong marriage, and for most people it still is, can cohabitation be of any help? As we have seen the statistical data are unsupportive on this point. So far, at least, living together before marriage has been remarkably unsuccessful as a generator of happy and long-lasting marriages.
SHOULD UNMARRIED COHABITATION BE INSTITUTIONALIZED?
If marriage has been moving toward decreased social and legal recognition and control, cohabitation has moved in the opposite direction, steadily gaining social and legal identification as a distinct new institution. Cohabitation was illegal in all states prior to about 1970 and, although the law is seldom enforced, it remains illegal in a number of states. No state has yet established cohabitation as a legal relationship, but most states have now decriminalized “consensual sexual acts” among adults, which include cohabitation. In lieu of state laws, some marriage-like rights of cohabitors have gradually been established through the courts. The law typically comes into play, for example, when cohabitors who split up have disagreements about the division of property, when one of the partners argues that some kind of oral or implicit marriage-like contract existed, and when the courts accept this position. Whereas property claims by cohabitors traditionally have been denied on the ground that “parties to an illegal relationship do not have rights based on that relationship,” courts have begun to rule more frequently that cohabitors do have certain rights based on such concepts as “equitable principles.”43
The legal changes underway mean that cohabitation is becoming less of a “no-strings attached” phenomenon, one involving some of the benefits of marriage with none of the costly legal procedures and financial consequences of divorce. In the most famous case, Marvin vs. Marvin, what the news media labeled “palimony” in place of alimony was sought by a woman with whom Hollywood actor Lee Marvin lived for many years. The Supreme Court of California upheld the woman’s claim of an implied contract. Many states have not accepted key elements of the Marvin decision, and the financial award of palimony was eventually rejected on appeal. Yet the proposition that unmarried couples have the right to form contracts has come to be widely acknowledged. In an attempt to reduce the uncertainties of the legal system, some cohabitors are now initiating formal “living together contracts.”45
Some of these contracts state clearly, with the intent of avoiding property entanglements should the relationship break down, that the relationship is not a marriage but merely “two free and independent human beings who happen to live together.”
Others, in contrast, seek to secure the rights of married couples in such matters as inheritance and child custody. Marriage-like fiscal and legal benefits are also beginning to come to cohabiting couples. In the attempt to provide for gay and lesbian couples, for whom marriage is forbidden, many corporations, universities, municipalities, and even some states now provide “domestic partnership” benefits ranging from health insurance and pensions to the right to inherit the lease of a rent controlled apartment. In the process, such benefits have commonly been offered to unmarried heterosexual couples as well, one reason being to avoid lawsuits charging “illegal discrimination.” Although the legal issues have only begun to be considered, the courts are likely to hold that the withholding of benefits from heterosexual cohabitors when they are offered to same-sex couples is a violation of U. S. laws against sex discrimination.
Religions have also started to reconsider cohabitation. Some religions have developed “commitment ceremonies” as an alternative to marriage ceremonies. So far these are mainly intended for same-sex couples and in some cases the elderly, but it seems only a matter of time before their purview is broadened. Unlike in the United States, cohabitation has become an accepted new social institution in most northern European countries, and in several Scandinavian nations cohabitors have virtually the same legal rights as married couples. In Sweden and Denmark, for example, the world’s cohabitation leaders, cohabitors and married couples have the same rights and obligations in taxation, welfare benefits, inheritance, and child care. Only a few differences remain, such as the right to adopt children, but even that difference may soon disappear. Not incidentally, Sweden also has the lowest marriage rate ever recorded (and one of the highest divorce rates); an estimated 30% of all couples sharing a household in Sweden today are unmarried.46
For many Swedish and Danish couples cohabiting has become an alternative rather than a prelude to marriage, and almost all marriages in these nations are now preceded by cohabitation. Is America moving toward the Scandinavian family model? Sweden and Denmark are the world’s most secular societies, and some argue that American religiosity will work against increasing levels of cohabitation. Yet few religions prohibit cohabitation or even actively attempt to discourage it, so the religious barrier may be quite weak. Others argue that most Americans draw a sharper distinction than Scandinavians do between cohabitation and marriage, viewing marriage as a higher and more serious form of commitment. But as the practice of cohabitation in America becomes increasingly common, popular distinctions between cohabitation and marriage are fading. In short, the legal, social and religious barriers to cohabitation are weak and likely to get weaker. Unless there is an unexpected turnaround, America and the other Anglo countries, plus the rest of northern Europe, do appear to be headed in the direction of Scandinavia. The institutionalization of cohabitation in the public and private sectors has potentially serious social consequences that need to be carefully considered. At first glance, in a world where close relationships are in increasingly short supply, why not recognize and support such relationships in whatever form they occur? Surely this is the approach that would seem to blend social justice and compassion with the goal of personal freedom. But is it not in society’s greater interest to foster long-term, committed relationships among childrearing couples? In this regard the advantages of marriage are substantial. It is only marriage that has the implicit long-term contract, the greater sharing of economic and social resources, and the better connection to the larger community.
The recognition and support of unmarried cohabitation unfortunately casts marriage as merely one of several alternative lifestyle choices. As the alternatives to it are strengthened, the institution of marriage is bound to weaken. After all, if cohabitors have the same rights and responsibilities as married couples, why bother to marry? Why bother, indeed, if society itself expresses no strong preference one way or the other. It is simpler and less complicated to live together. The expansion of domestic partner benefits to heterosexual cohabiting couples, then, may be an easy way to avoid legal challenges, but the troubling issue arises: cities and private businesses that extend these benefits are in effect subsidizing the formation of fragile family forms. Even more troublingly, they are subsidizing family forms that pose increased risks of violence to women and children. While the granting of certain marriage-like legal rights to cohabiting couples may be advisable in some circumstances to protect children and other dependents in the event of couple break up, an extensive granting of such rights serves to undercut an essential institution that is already established to regulate family relationships. These issues, at the least, should cause us to proceed toward the further institutionalization of unmarried cohabitation only after very careful deliberation and forethought.