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Constitution Check: When unmarried couples split, who gets their property?

August 24, 2016 by Lyle Denniston


National Constitution Center Supreme Court correspondent Lyle Denniston looks at a new equality pursuit that may wind up at the Supreme Court, involving due process and unmarried couples.


“What is important…is that the balancing of the relevant public policy considerations is for the legislature, not the courts.  Indeed, now that the centrality of the marriage has been recognized [by the Supreme Court] as a fundamental right for all, it is perhaps more imperative than before that we leave it to the legislative branch to determine whether and under what circumstances a change in the public policy governing the rights of parties in non-marital relationships is necessary….Since marriage is a legal relationship that all individuals may or may not enter into, Illinois does not act irrationally or discriminatorily in refusing to grant benefits and protections under [its marriage law] to those who do not participate in the institution of marriage.”

 – Excerpt from a 5-to-2 ruling by the Illinois Supreme Court on August 18, reaffirming a decision it had issued in 1979 that refused to allow an individual who had been in a lengthy, same-sex marriage-like relationship without being legally married to file a claim for equal ownership of the couple’s property when they split up.  Lawyers for the former partner who lost the case are considering whether to challenge that decision in the U.S. Supreme Court under the federal Constitution.

“We hold that pre-marital co-habitation is a factor that a court may consider in divorce proceedings when determining whether to depart from the presumption [under New Hampshire law] that an equal division is an equitable distribution of [the couple’s] property….Although, until now, we have not expressly held that pre-marital co-habitation may be considered a factor under [state divorce law], we conclude that, by not taking this into account, the [lower] court did not exercise the full breadth of its discretion under the statute.”

 – Excerpt from a unanimous decision of the New Hampshire Supreme Court on August 19 in the case of a lesbian couple who had lived together and shared their property and obligations for 18 years before same-sex marriage was allowed.  They did marry, but that ended in divorce after three years, and a lower court had ruled that the marriage was too short to allow an equal split of their property.  The state Supreme Court ruling requires that their lengthy pre-martial relationship be added to the time that counted.  The decision appears to conflict with the ruling noted above of Illinois’ highest court.


Last year, the Supreme Court removed any lingering doubt that same-sex couples across America had an equal constitutional right to marry.  That, however, was only the start of a continuing series of sequels about what else the Justices’ decision in Obergefell v. Hodges could lead to in family law.

While resistance to the court’s ruling has continued in various forms, many based upon objections to same-sex marriage because of religious beliefs, lawyers representing gays and lesbians have been attempting to gain new guarantees of equality for them.  One of the more fascinating developments has been on the rights of unmarried couples.

Before same-sex marriage became a firm constitutional right, many gay and lesbian couples had lived for years in committed relationships.  For many of those couples, they chose to blend their lives fully, almost as if they were legally married: living together, becoming economically interdependent, raising children, adopting the same family name.  They assumed that their ties were lasting, and sought to make their family lives stable.

As recently as 2010, the Census Bureau found that there were about 646,000-plus same-sex households in the country, at a time when only a few states had legalized same-sex marriage.  Of course, there were many more households of opposite-sex couples living in unmarried relationships, and melding their lives.  If it were to turn out that unmarried co-habitation were a legal situation that actually conferred rights on the partners in such relationships, that would not be a gain solely for gays and lesbians.

But the cultural reality is that such relationships do end, just as divorces end many marriages every year.  And, the legal reality is that it is often the case that one does not fully realize what rights were built up during a relationship – married or unmarried—until it comes to an end.

Some states had been reluctant, over many decades, to recognize “common-law marriage” as a valid legal status.  Couples recognized as being in “common law marriages” are not married in the full legal sense, but acquire a status somewhat like that by continuing to remain together as if married.

The state of Illinois continues to refuse to recognize such marriages, a policy on which its state Supreme Court recently relied in refusing to recognize equal rights to property when a same-sex couple broke up after a lengthy relationship.

Gradually, some states began conferring legal rights on unmarried couples, as the cultural norms of the nation changed and such relationships lost some of their stigma.

Into that process of change entered civil rights lawyers and family law specialists, seeking to expand the rights of unmarried couples while they remain together, and when they choose to split up.  Such efforts are not always aimed at equalizing the rights to property that had been accumulated during such a relationship; that would depend upon the extent to which a given couple had decided to make themselves economically interdependent.

Underlying those efforts was the perception that unmarried co-habitation was an entirely acceptable human condition, in moral and other dimensions, and thus should be recognized as eligible for some of the same state-conferred benefits that go with marriage.

Predictably, the efforts have met resistance, on the premise that full legal recognition of non-marital ties would actually work to undermine the institution of marriage itself.  That is a kind of “zero sum” argument that had long been used to counter the campaign to legalize same-sex marriage, but it was an argument that ultimately did not prevail.

The continuing efforts to expand the rights that develop within an unmarried relationship are playing out largely in state courts, because of the primary role of state law in determining marriage and family relationships.  But those efforts also implicate constitutional concepts of equality and due process, and those implications may at some point put this new equality pursuit before the Supreme Court.

Legendary journalist Lyle Denniston is Constitution Daily’s Supreme Court correspondent. Denniston has written for us as a contributor since June 2011. Denniston has covered the Supreme Court since 1958. His work also appears on

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