Albertina Antognini (University of Kentucky - College of Law) has posted Against Nonmarital Exceptionalism (UC Davis Law Review, Vol. 51, 2018 (Forthcoming)) on SSRN. Here is the abstract:
The Supreme Court’s opinion on the right to marry in Obergefell v. Hodges, inspired a flurry of scholarship on the topic of nonmarriage. In the wake of that decision, scholars have made claims about the state of nonmarriage, and also laid claim to it — embracing the nonmarital legal space that remains. This Article intervenes in the literature by looking at how the law directly interacts with unmarried couples — in distributing property when their relationship ends. The overview of the cases leads to one central claim: the law of nonmarriage as it currently stands remains deeply tethered to marriage, either expressly or by implication.
The cases that address property distribution are particularly revealing: courts must assess the nature of the relationship, and value the contributions made throughout. The most common scenario courts face consists of a woman seeking property from a man in the context of a heterosexual relationship. Yet the most common scenario the scholarship on nonmarriage addresses involves (1) a same-sex relationship, male or female, or (2) a heterosexual relationship with the standard roles reversed, meaning that the man is requesting property from the woman. This Article turns to consider these “exceptional” cases head-on. It argues that even though they are fewer in number and muddle the standard gender composition of the parties, they are part and parcel of the larger law of nonmarriage, which relies on marriage to garner meaning. A comprehensive analysis of the exceptional case law leads to an unexceptional conclusion: courts either bring these cases into marriage’s pull, or use the cases as a means of gendering the nonmarital space in a way that mimics traditional marital norms, regardless of the sex of the parties seeking property distribution.
Ultimately, this Article cautions against a wholesale embrace of the law of nonmarriage, especially if one values diversity of relationship forms. Indeed, the exceptional case law reveals not only the intractable relationship between marriage and nonmarriage, but it also exposes how courts impose gendered marital norms on a relationship in which the individuals are not married, and even where they could not have married.