Page 456 - วารสารกฎหมาย ศาลอุทธรณ์คดีชํานัญพิเศษ

วารสารกฎหมาย ศาลอุทธรณ์คดีชำานัญพิเศษ

there is no national health insurance in the U.S. Health insurance may be available
through one’s employer, but one can typically cover only legally related persons under

the policy. In this way, an obligation undertaken by the state in many countries rests
instead upon individuals in the U.S., and eligibility depends on marital status.

In this section, I describe some of the problems the lack of legal recognition
poses for cohabitants, such as their lack of the remedies available upon divorce or

the death of a partner, unfavorable tax treatment, and lack of social security coverage,
as well as their inability to sue for a variety of tort actions (personal injury lawsuits

against third parties). Although some difficulties may be transcended by drafting
contracts or executing wills, this only deals with rights of the two cohabitants vis-à-vis
one another, leaving them without recourse in the whole area of rights against the state

and third parties. In this section, I first describe cohabitants’ lack of rights vis-à-vis
one another and then their lack of rights against the state and other parties.

1. Cohabitants’ rights vis-à-vis one another
The first major group of rights cohabitants lack are those associated with divorce,

such as property distribution and spousal support. Thus one partner may be left without
assets or support after a long and committed relationship. If they can prove up a contract

to provide property division or support, that may provide an alternative remedy in most
states, but such cases are rare because they are so difficult to prove. If the couple lives
in Washington, they may be eligible for property distribution, but not spousal support,

and this can have an impact on their children. Although a child’s right to support does
not depend on marriage of their parents, a lack of support for the custodial parent can

have a severely negative effect on the child’s welfare.
For a variety of reasons, property justly belonging to both partners may be titled

in the name of only one, even though the other partner may have contributed to its
acquisition, either financially or through the provision of services, including homemaking
services. These would be compensated in a divorce proceeding by dividing the property

between them regardless of whose funds purchased it or in whose name the title was
registered. For cohabitants to accomplish this, in the absence of a contract, they must
sue to partition real property and/or assert equitable claims (for example, unjust

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