Private Law Theory

ABSTRACT
To this point, scholars analyzing nonmarital relationships have primarily focused on the challenge of determining the economic consequences of cohabitation. Yet property distribution, while significant, is only one piece of a much larger puzzle. Married people qualify for a wide range of benefits from the government as well as private employers. These benefits, such as health insurance or Social Security, can greatly eclipse the value of whatever the spouses can expect from each other at the end of their relationship. Marriage also affects spousal eligibility for means-tested benefits such as food stamps and financial aid. If nonmarital partners are similarly situated to married couples, regulation comprised solely of economic duties will exclude many potentially relevant legal incidents.

This Article studies these other legal incidents of nonmarital relationships. It does so by analyzing two years’ worth of recent cases involving disputes over the legal consequences of informal relationships. Courts have been called on to review determinations by insurance companies about eligibility under their plans, consider the viability of tort claims based on a party’s relationship to the victim or tortfeasor, and analyze criminal charges based on the nature of the defendant’s relationship to the alleged victim, among other things.

These other types of disputes – beyond property – have much to teach about the regulation of informal relationships. As an initial matter, they establish that relationships are relevant to legal consequences that have escaped scholars’ sustained attention. They also show that private entities, such as employers and insurance companies, are surprisingly active in their evaluation of informal relationships. Moreover, the cases reveal that although courts have struggled to identify when informal relationships should give rise to inter se obligations, they have successfully created a wide variety of tests to assess the legal significance of informal relationships outside the property context. Collectively, these cases establish that informal relationships perform functions that are relevant to the imposition of legal consequences that flow from formal relationships, and that the law must expand its view beyond property.

Matsumura, Kaiponanea T, Beyond Property: The Other Legal Consequences of Informal Relationships (February 25, 2020). Arizona State Law Journal, volume 51, no 4, 2020.

First posted 2020-02-26 08:22:48