Gavin Howe
The concept of family and what constitutes a couple has changed significantly over the past few decades, and the law has adjusted to these new realities, albeit slowly. While cohabitation has become increasingly common, with more than 5.5 million couples living together outside of marriage in 2000, the legal landscape surrounding it remains complex and inconsistent across different states. Eight states in the US still have laws prohibiting cohabitation, and several states continue to enforce antiquated laws criminalizing fornication and sodomy, particularly targeting homosexual activity. This raises the question of whether these laws prohibiting private consensual cohabitation are constitutional, with some state courts holding that such statutes violate state constitutions. The discussion around this topic involves considerations of fairness, the changing nature of relationships, and the role of marriage as a legal status.
Characteristics of laws prohibiting private consensual cohabitation
| Characteristics | Values |
|---|---|
| Number of states with laws prohibiting cohabitation | 8 |
| Number of states prohibiting fornication | 9 |
| Number of states prohibiting sodomy | >15 |
| Number of states with laws recognizing cohabiting couples as "domestic partners" | At least 1 (California) |
| Number of states with anti-cohabitation laws that are not enforced | >5 (New York, California, Massachusetts, Illinois, and other highly populated states) |
| Number of states with anti-cohabitation laws that are enforced | >3 (Southern states) |
| Number of states that recognize common-law marriages | Minority |
| Rights and obligations obtained by married couples that are not obtained by cohabitants | Inheritance, testimonial privilege, third-party recognition as spouses, wrongful death or loss of consortium claims, private insurance survivors' benefits, unemployment benefits, Social Security survivors' benefits |
| Legal and financial matters that cohabiting couples can arrange between themselves | Contracts, property ownership |
| States that have spoken about their reasons for declining to grant legal status to cohabitation | >1 |
| States that have declined to enforce contracts made by cohabitants | >1 |
| States where cohabitants were charged with misdemeanors under anti-cohabitation laws | At least 1 (Florida, until 2016) |
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What You'll Learn
The evolution of cohabitation laws in the US
In the past, US society and laws favoured traditional marriage, and cohabitation outside of marriage was not viewed favourably. However, with the rise in cohabitation rates since the 1970s, legal challenges regarding property ownership, inheritance, and rights typically associated with marriage have emerged. While some states have chosen not to grant legal status to cohabitation, others have introduced "living together contracts" to provide rights similar to those of married couples.
The recognition of cohabiting couples as "domestic partners" in certain states, such as California, has granted limited legal recognition and rights. This evolution in some states contrasts with the persistence of anti-cohabitation laws in others. For instance, Florida repealed its 1868 ban on cohabitation in 2016, while North Dakota has maintained its anti-cohabitation law since 1895, despite multiple attempts to repeal it.
The legal landscape surrounding cohabitation in the US continues to be a mix of traditional and evolving perspectives. While some states express concerns about undermining the significance of marriage, others acknowledge the need to respect individuals' freedom to contract. The increasing prevalence of cohabitation, including premarital cohabitation among young adults, has prompted legal adjustments to address the unique challenges faced by unmarried couples.
In conclusion, the evolution of cohabitation laws in the US has been influenced by shifting societal norms, legal challenges, and a growing recognition of the rights of unmarried couples. While some states have been more proactive in adapting their laws, others have been slower to change, reflecting the complex nature of this evolving social and legal landscape.
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The constitutionality of anti-cohabitation laws
Currently, eight states in the US have laws prohibiting cohabitation, which is defined as two individuals living together as spouses without being legally married. These laws often stem from historical notions of marriage as a legal "status" that carries societal significance beyond a private contract. This perspective, reflected in the 1888 US Supreme Court case of Maynard v. Hill, underscores the legal obligations and societal interests tied to the institution of marriage.
However, several legal challenges have been mounted against anti-cohabitation laws. In 2016, Florida repealed its ban on cohabitation, which had been in place since 1868 and resulted in regular misdemeanor charges. Additionally, in North Carolina, a state law against opposite-sex cohabitation was struck down by a Superior Court Judge, Benjamin Alford, though the Supreme Court of North Carolina has not yet ruled on the issue, leaving the law's constitutionality unclear. Similarly, in Virginia, the Supreme Court found the state's unenforced law criminalizing fornication, or sex between unmarried persons, to be unconstitutional.
Despite these legal challenges, some states, particularly in the Southern US, continue to uphold and enforce anti-cohabitation laws. North Dakota, for example, maintained its 1895 anti-cohabitation law despite multiple attempts to repeal it. These laws can have tangible consequences, such as impacting insurance policies and employment opportunities for unmarried couples. Furthermore, while most criminal statutes prohibiting private sexual activity are considered antiquated, they are occasionally enforced, as seen in the 1986 US Supreme Court case of Bowers v. Hardwick, which upheld a statute prohibiting sodomy between two homosexual men.
In conclusion, the constitutionality of anti-cohabitation laws in the US is a complex and evolving issue. While some states have moved towards repealing these laws and recognizing domestic partnerships, others continue to enforce them, reflecting a societal shift that has outpaced legal changes. As cohabitation rates continue to rise, the legal landscape will likely face further challenges and adaptations to address the rights and protections of individuals choosing to live together outside of marriage.
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Discrimination faced by unmarried cohabitants
While societal norms and laws have evolved to be more accepting of unmarried cohabitants, they still face discrimination in several areas. This discrimination is particularly pronounced in the areas of housing and employment, with some legal repercussions as well.
Housing Discrimination
Despite the growing acceptance of unmarried couples in society, they often face discrimination when trying to rent or buy a home. In most states, landlords can legally refuse to rent to unmarried couples, and many still do due to moral or religious beliefs. While fair housing laws in some states ban discrimination based on marital status, these laws often include exceptions for religious organizations. Additionally, courts in several states have interpreted "marital status" to protect married and single individuals but not unmarried couples. As a result, unmarried cohabitants in these states may find it challenging to secure housing, especially if they are dealing with religious landlords.
Employment Discrimination
Unmarried cohabitants may also face discrimination in the workplace. In some cases, employers may expressly forbid employees from living together outside of marriage and even terminate those who do. Unfortunately, this form of discrimination is generally not prohibited under federal or state laws, leaving employees with little legal recourse.
Legal Repercussions
Unmarried cohabitants may encounter legal challenges, particularly regarding insurance and support payments. For example, unmarried couples often face difficulties obtaining joint automobile insurance. They may also struggle to obtain health insurance family coverage provided or co-paid by an employer. Furthermore, in North Carolina, cohabitation by a dependent spouse can result in the termination of court-ordered postseparation support or alimony.
While anti-cohabitation laws are not often enforced, they still exist in several states. These laws can impact the rights and benefits afforded to unmarried couples, as seen in the historical use of "unlawful cohabitation" to enforce anti-polygamy laws. Additionally, unmarried cohabitants may face challenges in common-law marriage recognition and economic protections in the event of a relationship breakdown.
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Legal rights and obligations of cohabitants
While the concept of family and what constitutes a "couple" has changed over the past few decades, the law has not traditionally favoured individuals living together outside marriage. However, the law in this area has changed considerably in the past 50 years, as cohabitation has increased dramatically.
Legal rights of cohabitants
Cohabiting couples have some rights and obligations, but they do not have the same rights and obligations as married couples or civil partnerships. Unmarried cohabitants do not enjoy the same rights usually granted to married individuals, particularly with respect to property acquired during a relationship. Unmarried partners may define the terms of their relationship without being bound by marriage laws, and when a relationship ends, unmarried cohabitants need not follow strict procedures to dissolve the living arrangement.
Cohabiting couples may attempt to arrange legal and financial matters between themselves by entering into contracts or opting to take property in joint names or having made significant contributions to property titled in another’s name. In some states, cohabitants are defined in the Civil Partnership and Certain Rights and Obligations of Cohabitants Act, which grants them limited legal recognition and some rights similar to those of married couples. Recent changes in policy by insurance companies permit unmarried couples to purchase life insurance policies on the life of the other partner or jointly purchase homeowners' insurance on a jointly owned house.
Legal obligations of cohabitants
Cohabitation does not automatically create legal rights and obligations respecting matters like property distribution or financial support or inheritance rights. There is no reliable record-keeping, but it seems likely that most cohabitants do not enter into contracts about their mutual rights and obligations, which can lead to disputes about rights involving property and ongoing financial support when their relationships end.
Constitutionality of laws prohibiting private consensual cohabitation
While most criminal laws prohibiting private consensual cohabitation are clearly antiquated, they are sometimes enforced. Eight states still have laws prohibiting cohabitation, nine states prohibit "fornication", and more than 15 states prohibit "sodomy". In 2013, a US federal judge ruled that the portions of Utah's anti-polygamy laws prohibiting multiple cohabitation were unconstitutional, but this was overturned by the Court of Appeals, effectively recriminalizing polygamy as a felony. In 2016, Florida repealed its ban on cohabitation, and in North Carolina, a judge struck down the state's law banning opposite-sex cohabitation, although the Supreme Court of North Carolina has never ruled on the issue, so the law's constitutionality remains unclear.
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Insurance and other benefits for unmarried couples
Unmarried couples living together face unique challenges when it comes to insurance and other benefits. Here are some key considerations for insurance and benefits for unmarried couples:
Health Insurance
Domestic partner health insurance is a coverage option for unmarried couples. While not recognised by the federal government, some states and municipalities officially recognise domestic partnerships. Employers can choose to provide domestic partner benefits even if it is not legally recognised in their state. This allows unmarried couples to access health insurance through their partner's employer. However, access to this insurance depends on the health plan's rules and where the couple lives. Some insurers may require separate policies, while others may allow both partners on the same policy.
Life Insurance
Unmarried cohabitants can purchase life insurance and designate their partners as beneficiaries. This ensures the surviving partner has financial support and can help with expenses such as mortgages or school tuition. However, unmarried couples do not have the same inheritance rights as married couples, and the surviving partner is not automatically entitled to monetary benefits unless legally documented as a beneficiary. In Maryland, unmarried cohabitants can enter into a domestic partnership for inheritance purposes, allowing them similar rights to married couples.
Home Insurance
For renters, it is advisable to have both partners named on the renter's insurance policy to cover both individuals' belongings and provide liability protection. For homeowners, most mortgage lenders require home insurance or hazard insurance, which covers the loss of a house due to fire, flood, or other destruction. Unmarried couples may need to purchase an "`Other Members`" endorsement to ensure both partners are covered by the policy.
Automobile Insurance
Automobile insurance can be tricky for unmarried couples. Keeping separate auto policies is often the simplest solution, especially if finances are separate. Combining policies can lead to savings, but determining coverage in the event of an accident can be complex, especially with separate auto policies and a shared umbrella policy. For jointly owned vehicles, obtaining one policy is usually cheaper than separate policies. However, some companies may require each partner to buy their own policy.
Death Benefits
In some states, unmarried partners can obtain death benefits from workers' compensation insurance if their partner is killed on the job. The definition of a "dependent" is broad, and courts have allowed unmarried partners to recover these benefits. However, unmarried cohabitants cannot file joint tax returns, which may impact their tax ramifications.
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Frequently asked questions
Yes, eight US states still have laws prohibiting cohabitation, which is defined as two individuals living together as a married couple without being legally married.
North Carolina and North Dakota are examples of states that have laws prohibiting cohabitation. Florida also had a ban on cohabitation until 2016.
In some states, such as California, cohabiting couples are recognized as "domestic partners", which grants them limited legal recognition and some rights similar to those of married couples. Recent changes in insurance policies also allow unmarried couples to jointly purchase homeowners' insurance.
Yes, cohabitants do not have the same rights as married couples when it comes to inheritance, testimonial privilege, and insurance benefits. They may also face discrimination in employment and are not protected under federal law or the laws of most states.
While the constitutionality of these laws has been challenged in state courts, the US Supreme Court has not explicitly ruled on this issue. Some scholars argue that such laws are unfair and should be changed to protect the rights of cohabitants.
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