This Article discusses the evolution of family structure and the ascendency of privacy, liberty, and self-determination. Partially in response, an array of nonmarital unions have become commonplace in the past fifty years in the United States. Cases reveal the insufficiency of remedies avail- able to these nonmarital couples at dissolution-even for those couples living in states willing to enforce express or implied nonmarital agreements. Strikingly, there are fewer remedies for nonmarital cohabitants at death.
Public policy mandates concern for all citizens, including the evolu- tion of individualized family structures formed by its citizens. The issue addressed in this Article is whether public policy concerns warrant an extension of the marital presumptions traditionally associated with the commitment structure of marriage to a defined group of nonmarital co-habitants. Although increasingly rejected by state legislatures-in an effort to better control the workhorse functions of marriage-common law marriage may offer a remedy if enacted as common law commitment. Freed of the nitpicking elements of legislative proposals, common law commitment may better meet the needs of modern-day evolutions in human nature.
Raymond C. O'Brien, Marital Versus Nonmarital Entitlements, 45 ACTEC L.J. 79 (2020).