ABSTRACT
The law on the books has recognized the right of cohabitants to create enforceable legal obligations with each other for half a century. Yet few seek to enforce such obligations, and their attempts almost never prevail. This article explores one possible explanation for the invisibility of their claims. Marriage is so deeply rooted in our societal consciousness that it embodies what sociologist Pierre Bourdieu has called a habitus, a ‘subjective but not individual system of internalized structures, schemes of perception, conception, and action common to all members of the same group or class’. A habitus takes the form of things to do or not to do, to say or not to say, determining what conduct is reasonable or unreasonable. The marital habitus is the framework through which people structure their personal relationships and comprehend all adult intimacy. It explains why courts that expressly embrace the right of intimate partners to create legal relations cannot see those relations when they are asked to recognize them. This article gathers evidence of the habitus at work in parties’ legal arguments and in scholarly proposals to recognize nonmarital relationships. It then concludes by asking what, if anything, can be done to recognize valuable adult relationships beyond marriage.
Matsumura, Kaiponanea T, The Marital Habitus (August 12, 2022), Washington University Law Review, volume 99, no 6, 2022; Loyola Law School, Los Angeles Legal Studies Research Paper No 2022-12.
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