Courtney Joslin, ‘Nonmarriage: The Double Bind’

Nonmarital families constitute a large and growing slice of the population here in the US and around the world. Scholars and policymakers are increasingly grappling with how the law does and should regulate these relationships. Many other countries have responded to this demographic shift by adopting a ‘status-based approach’. Under this approach, if the relationship meets various criteria, the couple is treated like a married couple – like a family. States in the US, however, continue to resist this trend. The US, it is said, applies a ‘contract-based approach’ to nonmarriage. This Article offers new insights on this critically important debate.

By meticulously re-reading the case law through the prism of market doctrines, this Article reveals that the law of nonmarriage in the US follows neither approach. Instead, it places nonmarital partners in an untenable double bind: nonmarital partners are at once nonfamilies and families. Nonmarital partners are denied protection under the law of the family because they are not family. Simultaneously, they are denied protection under market law when the underlying transactions are too family like.

The content of this double bind is also peculiar. Nonmarital partners are denied relief for their family-like bargains because the law subjects these claims – and only these claims – to heightened formality requirements, beyond those imposed on sophisticated business players. The practical result of these features is that the critical work of forming and running nonmarital families remains outside of the law’s grasp. This Article concludes by employing the theoretical lens of the double bind to challenge the normative defenses of nonmarriage as autonomy and family respecting.

Joslin, Courtney G, Nonmarriage: The Double Bind (September 28, 2021). George Washington Law Review, forthcoming.

First posted 2021-11-18 10:00:08

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