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elsewhere. In the United States, by contrast, the law is premised, by and large, on
an assumption that individuals should look out for themselves, and the law of marriage

and divorce functions to privatize many social welfare functions to ex-spouses rather
than the state.

B. Recommendations for Reform in the Legal Treatment of Cohabitants

The lack of legal remedies harms the most vulnerable groups in the United States-
low-income couples, African Americans and Latino/as, who are the most likely to
cohabit. Moreover, there are many cohabitants who do not fall into these groups, and

a large proportion of all cohabitants have children in their households. For these reasons,
I argue that legal recognition should be extended to cohabitants under certain conditions.

My proposal has three parts:
1. Treat domestic partners who have cohabited for two years or have a child

together as though they were married;

2. Allow partners to contract out of these obligations with relative ease; and
3. Set up a system for registration as domestic partners similar to those available

in California and Illinois today, but allow them to design their own individual contracts
as well.

First, after two years or the birth of a child, cohabiting couples will have become
both financially and emotionally interdependent to an extent that they should be treated
as though they were married under both state and federal law. This status would be

imposed automatically, without the need for proof of any factors or registration. Given
the statistics about age distribution and length of cohabiting relationships, the two-year

requirement would exclude a large number of cohabitants, including most of those in
the younger age group. Alternatively, one could set an age minimum, such as 21, if the
couple does not have a child in common.

Second, couples who do not want to undertake the obligations involved in

marriage should be provided with a user-friendly method to opt out. If both agree to

common law marriage was abolished in England in 1753. See, e.g., Anne Barlow, Regulation of Cohabitation,
Changing Family Policies and Social Attitudes: A Discussion of Britain Within Europe, 26 Law & Policy 57, 73 (2004).

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