Cohabitation’s boundaries and the confines of tradition
| Date | 01 October 2016 |
| DOI | 10.1177/0964663916640032 |
| Published date | 01 October 2016 |
| Author | Yann Favier,Robert Leckey |
| Subject Matter | Articles |
Article
Cohabitation’s
boundaries and the
confines of tradition
Robert Leckey
McGill University, Canada
Yann Favier
Jean Monnet University, France
Abstract
In contrast with prescriptions for law reform for unmarried cohabitants, this article
studies legislative inertia on the subject. It compares France and the Canadian province
of Quebec, drawing on theoretical treatment of boundaries from critical geography,
queer theory, and sociolegal work on law reform. Abstinence from legislating for
cohabitants has not secured legal stasis. Informally and indirectly, ad hoc responses to
cohabitation have amended the boundaries of marriage and fundamental legal categories.
A conservative approach to marriage and cohabitation has failed to conserve marriage.
We identify a gap, not between law and social life but between law and its prevailing
justification, that cohabitants are free to choose to marry or to conclude contracts.
Legislative and judicial developments show that this justification fails to persuade. Finally,
we read France and Quebec’s approach to cohabitation as symptomatic of an impo-
verished misreading of the civil law tradition.
Keywords
Boundaries, civil law, comparative law, family law, France, Quebec, unmarried
cohabitation
Corresponding author:
Robert Leckey, Faculty of Law, McGill University, 3644 Peel Street, Montreal, Quebec, Canada H3A 1W9.
Email: robert.leckey@mcgill.ca
Social & Legal Studies
2016, Vol. 25(5) 525–543
ªThe Author(s) 2016
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DOI: 10.1177/0964663916640032
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Introduction
It frustrates reform-minded family scholars that some western liberal jurisdictions such
as England and Wales, whilst recognizing same-sex couples, have not legislated com-
prehensively for unmarried cohabitants. This legislative inertia flies in the face of data
tracing cohabitation’s rise and of prescriptions for reform. It may also resist a particular
instrumental view of law and its relationship with the social sciences and with ‘reality’.
Many of the same researchers lament cohabitants’ seeming imperviousness to informa-
tion campaigns and enjoinments to protect themselves by cohabitation agreements.
Whether or not cohabitants recalcitrance may be something to celebrate (Reece, 2015:
129), this comparative article takes a distance from literature prescribing what law
should do to cohabitation in places not having enacted reforms. Its chief inquiry is what
cohabitation has already done to law in two such places, France and the Canadian
province of Quebec.
1
This article makes three contentions. The first is that the ‘conservative’ approach to
cohabitation of legislative drafters in Quebec and France, eschewing explicit amend-
ments to marriage, has failed to ‘conserve’ marriage, its legal significance, and related
legal categories. Despite legislative abstinence from recognizing cohabitants in formal,
direct terms, ad hoc responses to cohabitation have in effect amended marriage and
surrounding law informally and indirectly. This conclusion troubles assumptions that
a legislative impasse produces – or secures – legal stasis. The second contention con-
cerns a cleavage. The cleavage does not lie between law and social life; such a gap may
be inevitable (e.g. Leckey, 2011; Noreau, 1999). Rather, it lies between law and its
dominant justificatory discourse. The prevailing justification for sharply differentiating
cohabitants from married spouses in France and Quebec is freedom of choice. Married
spouses have subjected themselves to conjugal rights and obligations, runs the mantra;
unmarried partners have not. Whatever one thinks of freedom of choice as a matter of
political or social theory, our brief survey of the positive law – across family law, the
general private law of property and obligations, the public law of social security and
taxation, and the supranational caselaw of fundamental rights – reveals that it fails to
convince the legislative drafters and judges whose work it purportedly justifies. Theo-
retical resources from critical geograp hy, queer theory, and sociolegal work on law
reform aid us in contrasting the contingent, constructed, and shifting character of legal
boundaries and categorizations with the ostensibly seamless, timeless discourse of
choice. More speculatively, the third contention bears on the mentalite
´or legal culture
of France and Quebec. The dominant approach to cohabitation may be symptomatic of
an impoverished misreading of the civil law tradition’s resources and epistemology, one
discernible beyond this issue.
Before proceeding, a word on the scope of our inquiry is in order. A shared language
and civil law tradition offer reasons for comparing France and Quebec. Another is that
both have robust welfare states. This feature of political economy is relevant since
approaches to cohabitation under public programs differ from private law’s. We define
the law pertinent to cohabitation capaciously, granting that the private law of the family
is embedded ‘in legal domains – such as social security systems and contracts – from
which it is typically divided or extruded’ (Halley and Rittich, 2010: 755). Moreover,
526 Social & Legal Studies 25(5)
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