‘Family Choices’

Courtney G Joslin, Autonomy in the Family, 66 UCLA Law Review 912 (2019), available at SSRN. What is the role of autonomy (choice) in American marriage law, and what should it be? This question is salient for topics like the proper treatment of premarital and marital agreements, but, as Courtney Joslin points out in her article, ‘Autonomy in the Family’, it also has clear importance for the proper treatment of non-marital cohabitants. As Joslin reports, the basic contemporary approach to the legal treatment of cohabitation follows some variation of the 1976 California case of Marvin v Marvin. That case authorized the enforcement of express and implied agreements between cohabitants, no longer treating all such agreements as unenforceable because they contradict public policy. However, as the author sums up, Marvin basically treated cohabitants as legal strangers, parties who can enter into agreements altering their rights and obligations to one another but are not required to do so … (more)

[Brian Bix, JOTWELL, 7 November]

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