Once upon a time — in 1950, to be exact — 80 percent of American adults were married. Today we still long for Valentine’s kisses, fall in love, and begin families, but most of us aren’t married. Many romantic partners and parents believe that by remaining unmarried, they are keeping the state out of their intimate lives. But in reality, being unmarried just changes who counts and who doesn’t when the law inevitably impinges on us. As a result, too many American couples and families are finding out only when disaster strikes that their love and commitment, outside the bonds of marriage, leaves them unprotected at the very most vulnerable moments of their lives.
For example, tragedies unfold every day when longstanding, devoted partners are banished, at critical moments, from the hospital room and excluded from vital medical decisions. When an unmarried patient is unable to make those choices, the law puts them in the hands of biological relatives or a judge, who are far less likely to know and appreciate the patient’s current wishes. And if an unmarried person dies without leaving a will, their partner may be legally forced out of their shared home and deprived of any inheritance, potentially being left homeless or impoverished.
Of course, there are ways besides marriage to protect our loved ones — individualized agreements, wills, powers of attorney, and so on, can confer many (though not all) of the rights of marriage on the person of one’s choice. But the fact is that most unmarried couples (no matter how committed to one another) don’t, because thinking about death and separation is so deeply disturbing.
This means we fall back on the choices that the government has made for us. In the case of organ donation, for example, the vast majority of people simply stick with the default option on their driver’s license application, whether that is (in their state) to be an organ donor or not. In the words of behavioral economist Dan Ariely, “You might think that people do this because they don’t care. That the decision about donating their organs is so trivial that they can’t be bothered to lift up the pencil and check the box. But in fact the opposite is true. This is a hard emotional decision about what will happen to our bodies after we die and what effect it will have on those close to us. It is because of the difficulty and the emotionality of these decisions that they just don’t know what to do so they adopt the default option.”
Similarly, most people don’t save adequately. Therefore, governments enact automatic deductions for social security, unemployment, and disability insurance. These defaults guarantee some level of protection from the ravages of job loss.
The legal defaults of marriage ensure some level of protection from the ravages of partner loss, which is part of the reason the LGBT community fought long and hard to gain them.
But the unmarried majority of the population lacks these protections. Rather than accepting the suffering that follows, we should recognize the new normal by updating family law. In this, we would be following the lead of other countries such as Sweden, New Zealand, Brazil, and Australia. These countries have addressed the prevalence of unmarried parents and public long-term romantic partners by providing them automatic legal protections.
Despite decades of efforts to boost marriage rates, they continue to fall. Forty percent of our children are born to unmarried parents – including more than half of children born to women under 30. The vast majority no longer opts into marriage, as they did in 1950. Our laws, like those of other countries, should provide some protection and rights to all public long-term couples and unwed parents, by instituting an automatic opt-out legal status. The default legal status could include predetermined child custody and support, medical decision making, equitable division of joint property, protection of separate property, inheritance benefits, and transitional housing upon separation or death of a partner.
Unmarried couples who want to modify or opt-out of this default status should be able to do so easily. Simple check box forms for this could be made available online and in print, at government offices including post offices, DMVs, schools, and libraries. Couples could check off the things they wanted to modify (or craft their own agreements) and notarize them, as evidence of the opt-out or modification. Similarly, either partner could end the relationship (and accompanying legal status) by sending a notarized certified letter. Or, of course, couples could always opt-out by getting married.
Our laws should be adapted to match how people live and love in the 21st century, filling in the many gaps left by the decline of marriage. The alternative — continuing to treat longstanding partners and as if they count for nothing when one of them has a medical crisis, leaves, or dies, is unfair and brutally unkind. It leads to the very suffering and insecurity that family law is meant to prevent.