I recently got back from a fascinating conference hosted by the International Association of Family Law (ISFL) and I wanted to write about an interesting presentation given by Katrine Fredwall from the University of Oslo, Norway. In Norway, as well as most of Western Europe, couples are increasingly choosing long term cohabitation over marriage. In many of these countries, cohabitation rates are over 60%. In the United States, cohabitation rates are not nearly as high, but they are increasing here as well. Consequently, considering how countries like Norway choose to address the legal implications of cohabitation may provide insight into how the US should address our own growing rates of cohabitation.
In her presentation, Fredwall explained that a few year earlier, she had been asked to suggest rules addressing how the property of long term, cohabiting couples should be divided at the end of the relationship (either because of death or breaking up). The idea that the property of cohabiting couples might be considered jointly owned is a relatively new idea. At the same time, joint ownership of marital property and the division of marital property at divorce is well established. In fact, the ability to have the courts recognize both spouses’ right to a share of the marital property is sometimes cited as one of the biggest legal benefits of marriage. Consequently, it makes sense that as cohabitation replaces marriage, some of marriage’s legal benefits may need to be transferred to cohabitation.
In the United States, the titled based approach to property division has long since been abandoned. This means that most marital property, i.e. property acquired during the duration of the marriage, is subject to a relatively equal division between the divorcing parties. In some states, the likelihood of a 50/50 split is higher than others but in general, a divorcing spouse can expect to leave the marriage with about half the marital property. Moreover, this property division occurs regardless of which spouse actually purchased the property. Unmarried couples do not have this protection thus, as increasing numbers of couples enter into long-term, non-marital relationships, there are reasons to consider whether these couples, at least with respect to property division, should be treated more like married couples
In South Carolina, where I live, the legal solution to unmarried couples that behave like married couples is common law marriage. Common law marriage in South Carolina is particularly interesting because it essentially makes marriage the default for cohabiting couples. Although the South Carolina Supreme Court has held that a couple cannot unwittingly find themselves married, there is significant case law holding that the existence of a common law marriage may be inferred from evidence of a well established and long-continued cohabitation. In addition, this is true even in the face of testimony that no express agreement was ever made. Consequently, South Carolina couples wishing to avoid marriage while cohabiting need to be explicit and vocal about their non-marital status.
According to Fredwall, a version of this type of common law marriage opt out approach is what the Norwegian government initially devised to deal with the issue of property division for cohabiting couples. Cohabiting couples would obtain an interest in each other’s property unless they specifically agreed their property would remain separate. Surprisingly, this solution was not popular. According to Fredwall, as soon as the regulation was enacted the complaints started. Then, in order to figure out why this solution was unacceptable to so many cohabiting couples, Fredwall began examining cohabitation more closely. What she found explained why a one size fits all approach to cohabitation is unwise.
According to Fredwall, there are primarily three types of cohabiting couples; young and childless, older and childless (including couples who met after their children were grown) and couples raising children together. According to Fredwall, the first two groups think of property ownership very differently than the third group. Specifically, couples in the first two categories primarily think of their property as separate and consider it owned by the person who purchased it. However, couples in the third group are much more likely to think of their property as jointly owned. Based on these findings, Fredwall stated that only the child rearing group should be subject to a property sharing default and that two childless groups should be presumed to own their property separately unless they indicate through contract, or other means, an intent to share.
Fredwall’s presentation was interesting and intuitively, it makes sense that these different groups of cohabiting couples might have different assumptions about their property ownership. In the United States, cohabiting couples are usually presumed to hold their property separately. However, perhaps the decision to jointly raise a child should change that presumption. Raising a child together makes cohabiting couples more like a traditional married couple and thus, possibly more suited to having their relationship governed by laws similar to those applicable to marriage and divorce. In addition, treating these couples more like divorcing couples, at least with regard to their property, also makes sense from a practical standpoint. It is much harder to keep finances separate when you are jointly raising a child. Unlike childless couples, where each person is able to purchase separate property with separate money, parenting couples spend a significant amount of their separate money on their joint child. Consequently, having a legal regime that will recognize and protect such couples makes a lot of sense. Although the United States is not as focused on the protection of cohabiting couples, Fredwall’s presentation convinced me that states should start paying more attention to cohabitation, particularly to how unmarried, cohabiting parents may require a different set of protections.
Posted by Marcia Zug on May 27, 2016 at 05:02 PM
Comments
“Marriage may not be not for everybody, but property law is.” Who would know that better than the founder of this website? And Marty Peretz, of course.
Posted by: Brian | Jun 3, 2016 11:11:31 AM
P.S. I thought it was interesting when the ALI proposed something similar to the European approach–treating certain cohabitations as having property consequences. But, there just has not been much movement on adopting these proposals in the U.S.
Posted by: Margaret Ryznar | May 30, 2016 4:51:02 AM
It seems to me that part of the difference between the approaches to cohabitation in the U.S. versus Europe stems from the fact that cohabitation substitutes for marriage in some European countries. Meanwhile, in the United States, cohabitation is still a step toward marriage, and most Americans still want to marry–for Americans, there is a real difference between cohabitation and marriage. So, people’s expectations regarding the meaning (and hence, consequences) of cohabitation are different in the U.S. than in Europe, and that is reflected in the differing legal approaches.
Posted by: Margaret Ryznar | May 30, 2016 4:37:37 AM
Doesn’t applying divorce law to any subset of unmarried couples disrespect their decision not to get married? We have a fairly easy and now (more) universally available means of opting-in to a property sharing regime. Why not leave it at that?
Posted by: John | May 28, 2016 9:59:08 PM
I wonder if the couples-with-children group is different simply because they have children, or rather because of other factors for which the presence of children is a good marker. Many young childless couples may not have the level of commitment necessary to want joint property; many older couples may have commitments from prior relationships, e.g. to children of a previous marriage, that make them want to protect their separate property. Also: I wonder how this works in Washington State, which treats cohabitating couples much like the Norwegian proposal you discuss, though through a multi-factor test that might capture more nuance in varieties of cohabitation (or perhaps makes it too complicated or obscure to apply in circumstances where it might otherwise cause problems).
Posted by: JHW | May 28, 2016 7:46:47 PM