In his recent post for Oxford University Press Blog, “The Sister Wives make the case for abolishing civil marriage,” Prof. Edward Zelinksy argues that the recent rulings out of Federal District Courts in Utah have made the case for deregulating family law.

According to Zelinsky,  Brown et al. v. Buhman and Kitchen v. Herbert:

It is no longer sensible or feasible for the state to define the family through the institution of civil marriage. We should accordingly deregulate it and thereby get the state out of the business of declaring what (and is not) a bona fide family. Deregulating marriage in this manner would recognize the legal and cultural reality of 21st century America. Abolishing civil marriage would also strengthen the institution of marriage by encouraging robust competition in the market for different forms of marriage. Traditional monogamous marriage, promoted by entrepreneurial religious leaders, could emerge from this competition as the big winner.

But, Zelinsky reminds us, deregulating marriage will not end the need for family law or family courts:

A world without civil marriage would not be a one without domestic relations law. We need vigorous law and vigorous law enforcement to protect the underaged, the coerced, and the defrauded. When marriages or other living arrangements break up without the parties having contracted for that possibility, the law will need to provide default rules concerning income, property, and off-spring. However, such rules should not utilize the now-archaic notion of civil marriage.

What I find most interesting about this suggestion is the idea that the state should simultaneously get out of the “marriage business” and allow parties to dictate their relationships by contract while at the same time creating a set of “default rules” that would govern those who fail to create contracts.  While this vision of family law may initially seem like a Libertarian’s dream, it actually creates a much more active role for the state than our current system. With record numbers of couples cohabiting outside marriage, Zelinsky’s proposal could bring these couples into the family law system despite their decision to opt-out of traditional marriage.

But how would we define the standards governing these relationships?  When couples purposely create obligations of mutual support, it seems reasonable for the state to enforce those obligations. But how do we treat couples who have not voluntarily undertaken those obligations? Can we imply such an obligation from their behavior? If so, what behavior? Over what period of time? What would these obligations be and how could they be altered? Zelinksy’s blog post doesn’t offer an answer, but it raises these–and many more–questions.

While Zelinsky’s proposal is interesting, a great deal of caution would be necessary to ensure that the deregulation of marriage doesn’t become the over-regulation of all intimate relationships.

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