BYU Law Review
Deconstructing Family: A Critique of the American Law Institute's "Domestic Partners" Proposal
In promulgating the Principles of the Law of Family Dissolution: Analysis and Recommendations ("Family Dissolution Principles"), the American Law Institute (ALI) proposes an extensive set of new rules to apply in proceedings relating to family dissolution. One of the major policy changes in family law proposed by the Family Dissolution Principles is the expansion of the scope of relationships that are treated as family relations. Many relationships that in the past have been called "alternative relationships" (alternative to family relationships) are treated in the ALI Principles as equal to and given the same legal protections, benefits, rights, and remedies as historically have been extended by law to a relatively narrow range of intimate or domestic interpersonal relationships, specifically spousal and parent-child relations in the traditional marriage-based family. Most of the Chapters of the Family Dissolution Principles contain provisions that deconstruct and redefine "family" relationships. For example, many of the sections of Chapter 2 (Custody), Chapter 5 (Compensatory Payments), Chapter 6 (Domestic Partners) and Chapter 7 (Agreements) contain provisions that significantly expand protected family relations or radically alter existing family law doctrines. Among the most controversial of the proposed levelling reforms are those in Chapter 6 (Domestic Partners) where the ALI proposes to significantly increase the types of relationships that may claim the full economic protections and privileges of marital status upon dissolution. In Chapter 6, the ALI moves toward equalizing the legal status of all adult domestic relationships and the economic consequences of their dissolution by broadly defining domestic partners, liberally providing for how that status may be established, and proposing to extend almost exactly the same economic benefits to domestic partners as are provided to married couples upon dissolution. This article focuses on Chapter 6 to demonstrate the family-deconstruction-and-relational-equalization theme of the ALI's Family Dissolution Principles. It argues that Chapter 6 is predicated upon some erroneous assumptions about the characteristics of same-sex and heterosexual non-marital cohabitation, as well as the nature and qualities of marriage in general, and about the sameness of the economic expectations and interdependence of non-marital cohabitants and marital couples. It concludes that the ALI's Principles significantly redefines and deconstruct s the family by substantially and unjustifiably expanding the categories of relationships that are given legal preference as "family" relationships.
© 2001 J. Reuben Clark Law School
Lynn D. Wardle,
Deconstructing Family: A Critique of the American Law Institute's "Domestic Partners" Proposal,
2001 BYU L. Rev.
Available at: https://digitalcommons.law.byu.edu/lawreview/vol2001/iss3/8
Link to SSRN