ABSTRACT
This Article aims to draw attention to the dynamic interrelationship between nonmarriage and marriage in which the principles, values, and rhetoric used in laws that relate to nonmarital intimate relationships infiltrate the traditional laws governing marriage. The Article argues that the laws governing nonmarriage affect the legal institution of marriage inasmuch as the laws governing marriage affect how nonmarital relationships are treated under the law. To demonstrate this dynamic interrelationship and influence, the Article uses observations drawn from the extensive Israeli legal experience with nonmarital relationships. Nonetheless, it advances a theoretical claim about the interrelationship between the laws of nonmarriage and of marriage that is relevant in general, including in the US context.
The Article focuses on two trends in Israeli laws governing nonmarital relationships and examines how these trends have influenced laws governing marriage. First, it examines how an emphasis on function rather than form in the realm of nonmarital relationships has had an impact on how the law addresses marriage. This is most apparent in how the law treats marriages that have ceased to function. The Article shows that for married spouses as well as for unmarried intimate partners, the law has placed a growing emphasis on their actual relationship rather than on their formal marriage status, and has attached considerable legal consequences to de facto separation, even without a formal divorce.
The second trend concerns the significance of autonomy and choice in defining the mutual rights and obligations that nonmarried partners have toward one another, especially in the contexts of property rights and post-separation maintenance. Here again, the use of reasoning and terminology that emphasize these features in the context of nonmarital relationships resonates in the laws of marriage, particularly those concerning marital property, and impedes attempts in caselaw and legislation to structure marital property law on normative values of equality and fairness, independent of the parties’ choices. Thus, the way spouses choose to live their lives is an increasingly relevant factor in the caselaw examining marital property rights.
Blecher-Prigat, Ayelet, Echoes of Nonmarriage (September 19, 2019). Arizona State Law Journal, volume 51, no 4, 2019.
First posted 2020-04-15 07:12:39
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