COHABITATION’S BOUNDARIES AND THE CONFINES OF TRADITION

Robert Leckey* and Yann Favier**

Social & Legal Studies [forthcoming; unrevised initial submission]***

INTRODUCTION

It frustrates reform-minded family scholars that some western liberal jurisdictions such as

England and Wales, while recognizing same-sex couples, have not legislated comprehensively

for unmarried cohabitants. This legislative inertia flies in the face of data demonstrating the rise

of cohabitation 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’ apparent imperviousness to information campaigns and

enjoinments to protect themselves by cohabitation agreements. Whether or not ‘cohabitants’

recalcitrance may be something to celebrate’ (Reece 2015, 129), this comparative paper 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 paper makes three contentions. The first is that the ‘conservative’ approach to

cohabitation of legislative drafters in Quebec and France, eschewing explicit amendments to

*
McGill University, Canada
**
Jean Monnet University, France
***
This research was funded by the Social Sciences and Humanities Research Council of Canada. For comments on
earlier versions, the authors are grateful to Nicholas Bala and Angela Campbell. A version of this work was
presented at the Quatrième réunion plénière du projet ANR-COMPRES (Justification et modalités des formes de
compensation économique après divorce), Université Jean Monnet et Université de Lorraine, Lyon, France.
1
In Quebec, more than one couple in three cohabits (37.8% in 2011); in France, it is nearly one in four (22.6% in
2011). In Quebec, ‘cohabitant’ or ‘de facto spouse’ refers to those living together in a conjugal couple who are
neither married nor in a civil union. In France, ‘cohabitant’ (concubin) refers to those living together in a conjugal
couple who are neither married nor ‘PACSé’ (having undertaken a pacte civil de solidarité). One might speculate
that without France’s inheritance regime, which significantly advantages those married or PACSé, the proportion of
cohabitants might be higher yet.

Electronic copy available at: http://ssrn.com/abstract=2739420

 2

marriage, has failed to ‘conserve’ marriage, its legal significance, and the legal categories with

which it operates. 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 complicates assumptions that a legislative impasse

produces – or secures – legal stasis. The second contention concerns a cleavage. The cleavage

does not lie between law and social life; such a gap may be inevitable (see e.g. Noreau 1999,

Leckey 2011). 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 freely chosen to subject 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 efforts it purportedly justifies.

Theoretical resources from critical geography, queer theory, and socio-legal 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 mentalité 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

Electronic copy available at: http://ssrn.com/abstract=2739420

 3

cohabitation under public programs differ from those under the private law. We hereby

underscore our capacious definition of the law pertinent to cohabitation and alertness to the

private law of the family’s embeddedness ‘in legal domains – such as social security systems and

contracts – from which it is typically divided or extruded’ (Halley and Rittich 2010, 755).

Moreover, French and Quebec enactments are subject to a fundamental law of human rights,

interpreted ultimately by a supranational or otherwise higher court. In the French case, the

European Court of Human Rights interprets the Convention and the European Court of Justice,

the treaties. Both prevail over inconsistent national law. In the Quebec case, the Supreme Court

of Canada interprets the Canadian Charter of Rights and Freedoms and may declare invalid

inconsistent provincial law. In both, then, the jurisprudence of fundamental rights constrains the

legislature’s policy in family matters, producing a unifying effect unwelcome to some

(Woehrling 2013, 122-123, see also Flauss 2005). Although not directly germane, supplements

to family policy in France and Quebec occasionally come from above in the forms, respectively,

of European enactments and federal legislation.

ENGAGING CRITICALLY WITH BOUNDARIES

Three strands of theoretical work help to bring into view the character of legal boundaries

relevant to cohabitation. The first is critical research in fields such as political and human

geography on boundaries, borders, and frontiers (from within socio-legal studies, see e.g. Sarat et

al. 1998). Such work reaches beyond the territorial focus to include borders enclosing groups and

identities (Newman 2003, 22, Newman and Paasi 1998, 194). Many of the theoretical insights

apply to institutions such as marriage. They lead to taking law generally, and family law

particularly, as concretizing justifications for inclusions and exclusions – which may be more or

less convincing. This literature on borders emphasizes that the social construction of boundaries
 4

defines the exercise of political and social power (Newman 2010, 774). It is necessary, then, to

ask who benefits and who loses from current enclosures and boundaries (Newman 2003, 22).

Far from being inert givens, or fixed constructs, borders arise from ongoing processes.

They need to be continually managed and perpetuated in a ‘process of bordering’ (Newman

2006, 148, see also Brunet-Jailly 2011, 3). This process has discursive or narrative dimensions

(Newman and Paasi 1998, 195, Kolossov 2005, 624). Borders separate the ‘self’ from the

‘other’, but that act of separation may constitute the distinction it purports merely to recognize

(Newman 2003, 14-15). These processes of definition and separation are inextricably bound up

with the process of othering (van Houtum and van Naerssen 2002, 125). Eliminating borders

appears impossible. As an indication thereof, the contemporary ‘borderless’ or ‘deterritorialized’

world has produced new group categorizations (Newman 2010, 776). Last, even as they try to

keep things separate, borders invite traversal and transgression: they ‘are equally there to be

crossed’ (Newman 2003, 14). The violent debate about same-sex marriage in France in 2013

embodied a number of these notions. It represented a conflict of differing narrative efforts to

self-define in relation to existing boundaries and to cross boundaries. It illustrated the

importance, for some, of defending the border that constitutes so-called ‘traditional marriage’.

The second strand is queer theory, which offers an analytically useful reminder that the

so-called ‘norm’ and the ‘outsider’ engage in mutual processes of self-constitution. If legally

defining the class of homosexuals involves constituting a class of heterosexuals (Halley 1993,

83), so defining marriage involves producing the class of those outside it. Queer theory asks

‘how certain categorizations work, what enactments they are performing and what relations they

are creating’ (Sedgwick 2008, 27). It cautions, too, that flagging a category’s inconsistency need

not undermine its force. To the contrary, ‘definitional incoherence is the very mechanism of
 5

material dominance’ (Halley 1993, 98). The concern of queer critics of same-sex marriage that

new inclusions entail new exclusions echoes the reminder of border theorists that processes of

bordering and othering are unavoidable (Warner 2000).

The third is work by socio-legal scholars experienced in law reform. They underscore

how changes outside a legal category, such as marriage, may affect that category. Pointing to

law’s ‘inescapable complexity’, Macdonald (2007, 1160) distinguishes explicit and implicit law

reform, as well as reform that is textual and non-textual (Macdonald and Kong 2006, 32-45). The

upshot is that social practices in family matters can effectively produce law reform – implicitly

and non-textually – despite legislative inactivity. Socio-legal discourse resonates with that of

queer scholars. For instance, for Carbonnier (2008, 262-263), reforms to the status of children

born outside marriage affect marriage’s significance and position. So would amendments that

ended marriage’s monopoly by allowing unmarried couples to adopt. Indeed, for Carbonnier,

marriage and its outside, cohabitation, sustain a reciprocal relation such that ‘the question of

marriage is the question of concubinage’ (2008, 277 [authors' translation]). An American scholar

speaks similarly about marriage’s ‘dynamic nature … and the way it is actively constructed in

nonmarital spaces’ (NeJaime 2014, 164 [footnote omitted]). These theoretical strands offer

analytical resources for contrasting legal boundaries under pressure with the overarching

discourse of choice.

FAMILY AND NOT-FAMILY

Cohabitants occupy an ambivalent situation in relation to legally recognized ‘family’.

Traditional family law in France and Quebec included the proposition that cohabitants form at

best a couple, not a family. Traces of this view remain and the legislative drafters have declined

to dislodge marriage from its privileged place. Cohabitation produces not a civil status, but at
 6

most a factual situation. Still, the proposition by which cohabitants do not form a family has

become unsustainable in law.

Before giving examples of cohabitants’ place vis-à-vis family law, it is appropriate to

identify the chief justification for legislative policy in their regard. This justification is freedom

of choice and the impropriety of subjecting cohabitants to unchosen or unconsented-to

obligations. Married spouses have voluntarily assumed reciprocal obligations; cohabitants have

not. The prevailing reading of a policy that withholds from de facto spouses any protections

under family law is that the legislature thereby ‘respects their will and their freedom’; by

‘refusing to regulate their mutual relations’, it ‘recognizes their responsibility to protect

themselves’ (Pineau and Pratte 2006, 536 para 374 [authors' translation]). It is de facto spouses’

liberty that purportedly justifies treating them as legal strangers (Nicolas-Maguin 2009, 386-392,

Hauser 2005, D.-Castelli and Goubau 2005, 1, Goubau 1995, 476, Roy 2010, for critical

analysis, see e.g. Leckey 2009a, Tremblay 2015, on 'complicating choices', see generally

Campbell 2013Ch. 1)

Orthodox sources in the civil law present marriage as the founding institution of a family.

Filiation, the legal bond between parent and child, is the institution by which a family then

reproduces itself forward in time (Marty and Raynaud 1956, 530 at para. 384). Whether or not

contemporary authors maintain this view consistently, legislative drafting implies that de facto

spouses do not form a family. For example, in Quebec the adjective ‘family’ (in French, familial)

qualifies measures restricted to de jure spouses. In France, that adjective denotes measures

regarding the support and custody of children. The legislative experience in France and Quebec

shows that the legal approach to marriage and cohabitation no longer tracks faithfully the

opposition between family and not-family.

 7

While cohabitants find themselves in movement across the boundary between family and

not-family, the core provisions on marriage continue to give credence to the view of cohabitants

as not-family. The Civil Codes of France and Quebec regulate in detail the relations between

spouses by marriage and by civil union. They provide for them a range of obligatory and

suppletive or default measures. Such measures address the obligation of support, the sharing of

household expenses, and the family residence. With variation in the statutory matrimonial regime

and varying scope for electing separate property via a marriage contract, the two Civil Codes

also presume a sharing of the gains during the marriage. In contrast, neither code attaches rights

and obligations to de facto spouses in virtue of their relationship. Similarly, the regime for the

legal devolution or distribution of intestate successions makes no provision for the de facto

spouse or the civil partner in the French PACS (art 653 CCQ a contrario; arts 756, 515-7 CC).

(Lefebvre 2012a).

Nevertheless, the legislative drafters have not entirely ignored de facto spouses. The

French Civil Code defines concubinage as ‘an union [sic] in fact, characterized by a life in

common offering a character of stability and continuity, between two persons, of different sexes

or of the same sex, who live in couple [sic]’ (art 515-8 CC, Legifrance, trad. by David W.

Gruning). For its part, the Civil Code of Québec includes no definition of de facto spouse.

Instead, the Interpretation Act provides one: ‘Two persons of opposite sex [sic] or the same sex

who live together and represent themselves publicly as a couple are de facto spouses …’
(
Interpretation Act, CQLR c I-16, s 61.1, para. 2).

The moment of these definitions’ appearance is telling. The respective legislatures

defined concubinage or de facto spouses at the same time that they enacted a form of relationship

recognition open to same-sex couples (in France, the PACS (1999); in Quebec, the civil union
 8

(2002)). It is as if, while same-sex relationships move ‘from “odious crime” to “gay marriage”’

(Cretney 2006), becoming ever more speakable, law must also speak henceforth of other types of

union. The dynamic character of the boundary between marriage and cohabitation is observable

in the fact that a challenge to marriage – or at least to its exclusivity as the sole civil status for

adult conjugal couples – produced developments in marriage’s outside, the field of cohabitation.

That Quebec’s definition appears outside the Civil Code, which has the vocation of establishing

and defining the basic notions of private law and social life (Brierley and Macdonald 1993, 100

at para. 87), bespeaks the drafters’ ambivalence. They could no longer ignore cohabitation, but

declined to legitimate it by defining it in the Civil Code’s book on the family.

On the front of filiation and parenthood, French and Quebec law takes account of the

parents’ relationship or civil status. In both jurisdictions, it is easier for children born into a

marriage or a civil union to establish their filiation than for children whose parents are unmarried

(presumption of paternity; power of one parent to declare parentage for the legal spouse) (arts

525, 114 CCQ; art 312 CC). In Quebec, a person may adopt the child of his or her de facto

spouse using the streamlined process of adoption by ‘special consent’ (art 555 CCQ). By

contrast, the French Civil Code restricts adoption by more than one person to married spouses

(art 346 CC). Downstream of establishing parentage or filiation, however, both the French and

Quebec Civil Codes do not distinguish unmarried from married parents regarding the exercise of

parental authority or the obligation of child support. Marriage and filiation are thus substantially

uncoupled, although the rules mentioned here imply that legal spouses have committed ex ante to

forming a family by having children in a way that de facto spouses have not.

Both Civil Codes are not wholly silent regarding de facto spouses. Ad-hoc

acknowledgement shows the instability of the boundary between family and not-family. Where
 9

an incapable person of full age has not designated a person able to consent to care on his or her

behalf, the de facto spouse may do so (art 15 CCQ; art L1111-4 CSP). Within the regimes of

obligations, the rules for residential leases grant a de facto spouse certain rights vis-à-vis a

landlord (a right to maintain occupancy where the other spouse was the lessee; a right to

terminate a lease because of domestic violence) (arts 1938, 1974.1 CCQ; Law 89-462 (6 July

1989), art 14). Law protects the rented premises in which de facto spouses dwell together less

fully than married spouses’ ‘family residence’. It distinguishes such premises, however, from the

lodging shared by strangers, burdening third-party landlords’ exercise of their contractual and

property rights.

De facto spouses’ familial character appears most undeniable on the terrain of disputes

following relationship breakdown. In such settings, judges do not accept the legislative drafters’

cue that de facto spouses are not ‘family’. For instance, judges at times speak of cohabitants’

‘family residence’, although they are not strictly speaking applying rules of family law (Leckey

2009b). Procedural law frankly acknowledges de facto spouses’ familial character. Mandatory

information sessions on mediation in family matters now reach disputes between de facto

spouses regarding property division (art 417 CCP (new); art 127 CPC). The French judge for

family matters (JAF), competent regarding married spouses’ proceedings for legal separation or

divorce, is also competent for all kinds of disputes regarding former cohabitants.

Arguably, this inconsistent treatment of de facto spouses – legal strangers one to the

other, but, for some purposes, partners or family to third parties – sets them in ‘a kind of state of

liminality, betwixt and between recognition and nonrecognition’ (Cossman 2008, 156). They are

not formally family, subject to familial rights and obligations. Their disputes are, however,

family disputes. If their dwelling is not a family residence, neither is it just any rented dwelling.
 10

Cohabitants do not have a civil status as spouses, but the conjugal character of their relationship

‘flickers’ (Halley 2010, 26), coming into law’s view, sometimes. Consequently, the contours of

marriage no longer track the boundaries of the legal definition of family. Indeed, if it would be

exaggerating to say that legislative drafters have lost control of the boundaries of family, the

hybrid character of de facto spouses undercuts claims that the legal boundaries of family are

natural or historically stable. Sprinkling privileges associated with marriage on the field of

cohabitation, and doing so increasingly over time, denaturalizes the concentration of such

privileges around marriage. It undermines marriage’s position as sole ‘authorized conjugal

couple’ (McGowan 2015, 2). The contingent, shifting, and ambivalent quality of legal

acknowledgements of cohabitants contrasts with the abstract, ahistorical, and unbending

justification for withholding family rights and obligations from them: their freedom to choose

and respect for their choice not to marry.

FAMILY LAW AND THE GENERAL PRIVATE LAW

This part of the paper reveals a further disjuncture between the positive law applicable to

cohabitants and the justification based on their freedom of choice. Scrutiny of the boundary

between family law and the general law of property and obligations reveals that legislative

abstinence from including cohabitants in private family law’s economic protections has not

sheltered lawyers and judges from pressure to address the fallout of unmarried intimacy. The

result is acknowledgement of family dynamics as judges apply and adapt rules conceived for

commercial parties who interact at arm’s length. Political scientists who work on judicial

behaviour note the difficulty of proving causation in relation to judicial decisions (Segal 2009).

Still, it is reasonable to connect these developments with family law’s refusal to recognize

cohabitants.
 11

The basic notion is that de facto spouses – like any individuals – are subject to the

general private law of property and obligations and are free to use it to fashion suitable

arrangements. In Quebec, it is 35 years since the legislature abrogated the rule declaring

unenforceable an individual’s gift to his concubine that exceeded aliments (former art 768

CCLC). In 1999, the French Cour de cassation admitted gifts or legacies to an adulterous

cohabitant (Favier 2015, 2013, 508 at para. 142.33). In principle, contracts by which de facto

spouses undertake to pay support, or subject themselves to a matrimonial regime of property

sharing, are enforceable. Quebec courts do not decline to enforce agreements on the basis that

their ‘cause’ offends public order or that they are purporting to access the benefits of marriage

covertly (Couture c Gagnon). There are severe limits on the French courts’ willingness to

enforce the clauses in cohabitation contracts addressing alimony between cohabitants and

undivided co-ownership. Notably, clauses may be unenforceable on the basis that their cause is

illicit or inexistent (Favier 2013, 506 at para. 142.17). In contrast with matrimonial conventions

or the legal rules entailed by marriage, contracts between cohabitants may not threaten or

constrain the interests of third-party creditors.

If the ideas of choice and of cohabitants’ freedom to protect themselves by deploying the

devices of the general private law convinced judges, the latter would not adapt those devices to

the cohabitation context. Instead, in departure from the neutrality implied by cohabitants’

freedom to use the general private law, judges have acknowledged de facto union’s specificity in

the law of obligations. Recognition of an undeclared partnership occasionally provides a remedy

to an estranged de facto spouse. Making out the conditions to demonstrate the formation of a

contract of partnership is, however, difficult (Lefebvre 2012b, 25 para 37, Morin 2008). A

division of property and of gains between cohabitants – on separation or on one partner’s death –
 12

will be possible only where the claimant proves a distinctive affectio societatis (on the French

‘société créée de fait’, see Civ. 1re, January 20th 2010, 08-13.200 and 08-16.105).

The doctrinal path preferred by the Quebec Court of Appeal and the French Cour de

cassation for remedying the potential injustices arising from a de facto union is unjust

enrichment. Since 2008, the Cour de cassation has contemplated compensation for a cohabitant’s

contributions to household expenses, despite the inexistence of any legal obligation to

contribution to such expenses and of any support obligation. To facilitate a former de facto

spouse’s claim in unjust enrichment, the Quebec Court of Appeal has adopted presumptions

concerning the correlation between the defendant’s enrichment and the plaintiff’s

impoverishment and concerning the absence of justification for the enrichment (Baudouin, Jobin,

and Vézina 2013, 575-576 para 585). Moreover, the Court of Appeal has also departed from the

prevailing understanding by which the lesser of the claimant’s deprivation and the respondent’s

gain caps any potential award (Leckey 2012). Quebec courts occasionally take the Canadian

common law’s notion of the ‘joint family venture’ (Kerr v Baranow) as relevant to claims in

unjust enrichment under Quebec civil law (e.g. Droit de la famille—132495). The Court of

Appeal purports to tread the fine line between recognizing the potential injustice that risks

arising from cohabitation as a known social phenomenon and respecting the legislative decision

not to attach to cohabitants any regime for sharing property (compare from England adaptation

of the law of trusts to the ‘domestic consumer context’: Stack v Dowden: para. 58; Jones v

Kernott) (Probert 2007).

In effect, the decision to maintain a consequential boundary between the married and the

unmarried in family law has moved or rendered porous that between family law and the general

private law of property and obligations. A family textbook’s coverage of adult couples must now
 13

include elements of partnership and unjust enrichment that might once have been the exclusive

domain of books on obligations (e.g. Pineau and Pratte 2006, 566-79 at para. 383). A book on

obligations may now require material dedicated to de facto spouses (e.g. Baudouin, Jobin, and

Vézina 2013, 640-644 at paras. 551, 552). In other words, a legislative decision to preserve the

coherence and formal logic of matrimonial law based on adults’ formal consent has undermined

the coherence and formal logic of regimes in the law of obligations. Views may differ on the

tradeoff’s fairness. Significantly, though, debates of elected lawmakers on family policy do not

usually foreground the prospect of such a tradeoff. The paper’s next part takes up private law and

public law. These are not wholly separate, but different policy choices articulate their

entanglement differently.

PRIVATE LAW AND PUBLIC LAW

If the preceding part reported that judges seem unpersuaded that choice justifies family

law’s sharp distinctions between marriage and cohabitation, this part suggests that the same

legislative drafters responsible for family policy in the Civil Codes seem themselves half-hearted

about the distinction. Bringing together private family law and public law on the cohabitation

question leads to a better appreciation of the variable boundary between them. It shows further

the gap between the positive law and the justification based on choice.

The point of departure is cohabitants’ different treatment under private family law and

public law. As noted, in contrast with the hands-on approach to married spouses, private family

law in France and Quebec imposes no obligations or sharing of resources on cohabitants. By

contrast, dozens of social and fiscal laws in France and Quebec assimilate de facto spouses to

spouses by marriage or by civil union (Tétrault 2010, 854). These laws provide some benefits.

They also impose disadvantages, in a form of ‘deprivative recognition’ (Aloni 2014). For
 14

example, the Quebec government reduces means-tested benefits on the assumption that de facto

spouses share resources, irrespective of whether they do so. Moreover, if the government

overpays benefits to one partner, both are jointly and severally liable for repayment. The

presumption of pooled resources is irrebuttable. That is, individuals may challenge their

characterization as de facto spouses, but once recognized as such, they cannot rebut the

presumption that they pool resources. The French tax system assimilates concubins to married

spouses for taxing income and wealth. For cohabitants, such treatment is a clear disadvantage

(Favier 2013, 510 at para. 142.51, see further Douet 2013). The justification for these public

regimes recognizing cohabitants, in a way over which they have no control, cannot be that they

are free to choose to marry. It may be that the decision to live together represents a legally

significant choice, but private family law does not see conduct as such.

Public law and private family law pursue, then, distinct approaches in their treatment of

cohabitants. Under public law, cohabitants form an economic unit. Under private law, they are

individuals who potentially negotiate and contract with one another at arm’s length. This

difference need not be intrinsically problematic, although common lawyers may tolerate better

than do their civil-law counterparts a term’s assumption of variable, context-specific meanings

across the legal system (Legrand and Samuel 2008, 64-68). The point is not just that public law

and private law define family or spouses differently. It is that the question of marriage and

cohabitation illuminates the variable character of the boundary between public law and private

law.

It is no coincidence that the public law and private law share an approach to married

spouses as an economic unit. They are mutually reinforcing or self-justificatory. As a matter of

chronology, the public law’s approach followed the private law’s recognition of familial
 15

obligation. The private law of the family has historically imposed economic obligations within

marriage – until fairly recently, gendered ones, centred on the husband’s duty to support his wife

and hers to submit to his authority. The welfare state’s panoply of benefits, exemptions, credits,

and deductions developed later. The legal curriculum and librarians’ catalogues separate public

from private law (Millard 1995). On marriage, though, they have a relationship of reciprocal

support. The justification for public law’s spousal benefits may be that the performance of the

private law’s spousal obligations increases overall utility. The justification for public law’s

spousal disadvantages may be the resource sharing and economies of scale under the private law

of marriage. Still, the approach of each is more compelling in the other’s light.

By contrast, on the cohabitation question, public law and private law present opposing

views. Together, public law’s recognition of de facto spouses and private law’s abstinence from

doing so potentially cause confusion and produce injustices (Belleau 2015, Leckey 2014).

Crucially, the boundary between public law and private law does not keep them separate. As the

geographic literature presaged, this boundary or process of bordering is a political one involving

marriage and cohabitation differently. Public law’s recognition of de facto spouses undermines

the persuasiveness of private law’s justification for refusing to do so. Furthermore, public law’s

recognition dilutes the distinctiveness of marriage as the locus of legally cognizable economic

interdependence and solidarity. Next, we turn to the boundary between law and politics in the

context of supranational tribunals’ interpretation of fundamental rights in claims by cohabitants.

LAW AND POLITICS

Given the prominence of critical approaches by which law and politics are inseparable

and the project of human rights is inevitably a political enterprise, it is necessary to clarify our

contention. Despite litigants’ efforts, principles of human rights have not invalidated the sharp
 16

difference in treatment of married and unmarried couples under the family law of France and

Quebec. Courts have shown reluctance to use human-rights instruments to invalidate a

legislature’s policy on cohabitation. The judgments hint at sensitivity to this question’s political

stakes. It is not simply that politics infuses the process of rights adjudication. Rather, at the

crossroads of changing social practice and attitudes, family policy, and fundamental rights,

politics infuses the process differently as between (overwhelmingly) different-sex cohabitants

and same-sex couples. The justificatory factor of choice mediates this difference – and here

again, this justification fails to persuade all judges.

The Supreme Court of Canada’s treatment of the cohabitation question from Quebec

foregrounds the thorny matter of choice. Quebec (Attorney General) v A was a challenge to the

exclusion of de facto spouses from the provisions applicable to spouses by marriage and civil

union. The claim arose under the equality guarantee in section 15(1) of the Canadian Charter of

Rights and Freedoms. Nearly two decades earlier, the Supreme Court of Canada had recognized

marital status as a suspect ground ‘analogous’ to those listed in the equality guarantee, on the

basis that individuals will not always have effective control over their marital status. The Court

found unjustifiable discrimination where legislation imposing the terms of standard insurance

contracts withheld indemnities from unmarried partners (Miron v Trudel). In the 2013 judgment,

a narrow majority upheld the restrictive reach of Quebec’s matrimonial law. Four judges found

no discrimination. Five judges concluded that all the elements of the marriage regime were

discriminatory, excluding cohabitants who might not meaningfully have chosen their marital

status. Of those five, however, only one judge viewed all the discrimination as unjustifiable.

Three others thought it justifiable to exclude de facto spouses from the division of matrimonial

property, but not from the support obligation. The fifth judge saw the discrimination as
 17

justifiable, on the basis that a legislature might validly promote autonomy and choice. She

referred to the values of federalism and the exclusive legislative competence of the province,

political matters not normally relevant to the proportionality of limits on rights. Her discussion

nodded to Quebec’s distinctiveness within the Canadian federation. In the background hovered

the explosive potential of a federally-appointed apex court’s invalidating Quebec legislative

policy under the Canadian Charter (Chaudhury and Rouleau 2013).

In the case of France, the Court of Justice of the EU and the European Court of Human

Rights (ECtHR) have shown the same hesitation when considering whether discrimination based

on marital status is unjustifiable. For European judges, the legislature may confer a special status

on marriage or registration and withhold that status from de facto types of cohabitation. The

basis is that marriage confers a special status on those who enter into it and Article 12 of the

European Convention on Human Rights protects the right to marry. Accordingly, marriage ‘gives

rise to social, personal and legal consequences’, as said about spousal testimonial privilege (Van

der Heijden v. Netherlands: para. 69). Both French appellate courts and the ECtHR have

regarded as justified legislation restricting survivor benefits to married spouses (Marenc v.

France).2 In general, the European jurisprudence grants states a wide ‘margin of appreciation’

regarding the question of the equality of treatment of married and unmarried couples and the

right to protection of one’s private and family life. That is, the courts tolerate a range of

legislative policies that distinguish unmarried from married couples, preserving legal

‘differences in otherwise similar situations’ (Schalk and Kopf v. Austria: para. 96).

2
For French higher courts, see Cour de cassation Civ. 2ème, 5 mars 2008, pourvoi n° 08-60.232 and Conseil
constitutionnel DC n° 2011-155 QPC du 29 juill. 2011; Conseil d’État déc. 6th 2006, 06-12-2006, rec. 262096. The
position of the European (EU’s) Court of Justice is more nuanced: see 10 May 2011, Römer c/ Freie und hansestadt
hamburg, C- 147/08, D. 2011. 1485; 1 April 2008, n° C-267/06, Versorgungsanstalt der deutschen Bühnen cases.
 18

The contrast that makes this hesitation to override legislative policy so interesting arises

from the rights challenges raised by same-sex couples. Canadian courts concluded in the early

2000s that denying same-sex couples access to marriage was unjustifiably discriminatory. Gay

men and lesbians are not gay by choice – we are ventriloquizing, not endorsing this argument

(Halley 1994) – and thus they, unlike unmarried cohabitants, did not have the ‘choice’ and

‘freedom’ to marry (compare Osterlund 2009). The Grand Chamber of the European Court of

Human Rights has concluded that Greece’s domestic civil partnership, restricted to different-sex

couples, violated the prohibition of discrimination on grounds of sexual orientation. It

disproportionately limited gay men and lesbians’ enjoyment of the right to personal and family

life (Vallianatos and Others v Greece) (Trispiotis 2014, Johnson 2015). More recently, the

European Court of Human Rights has concluded that Italy must adopt some kind of law allowing

same-sex couples to register their relationships. Doing nothing is no longer an option (Oliari &

Others v Italy). The Court has not found a positive state duty to recognize same-sex marriage,

although it has enlarged its concept of ‘family’ (for careful critique, see Ammaturo 2014). Still,

the conclusions on same-sex couples challenge national legislative policy on marriage more

severely than do those on cohabitants.

Deference to the political choices of national legislatures seems greater on the

cohabitation question than the marriage question. The courts are not, then, deferring to

legislatures regarding a generic category of family policy as embedded in national culture

(Krause 2006, 1101). Granted, as judicial upshots, deferring more and deferring less may be

equally ‘political’. Nevertheless, they gesture towards differently located boundaries between

human rights and legislative policy. A mediating factor is choice: absent judicial or legislative

action, same-sex couples had no ‘choice’ to attain a formal relationship status. Unmarried
 19

cohabitants – so the reasoning goes – may marry if they (both) so choose. These differing

approaches to the fundamental rights of cohabitants and same-sex couples make evident the

shifting boundary between law and politics. Furthermore, the finding of discrimination in the

Quebec cohabitation litigation attests to judicial ambivalence regarding the justification of

choice.

CHOICE, CONTRACT, AND THE CIVIL TRADITION

To this juncture, we have focused on cohabitation’s impact on law. We have submitted

evidence of the constructed character of major organizing boundaries for law and of indirect,

informal changes to marriage’s position as sole authorized form of legitimate conjugal life. We

have also highlighted the gap between legislative and judicial acknowledgements of cohabitation

and the private law’s justification for not doing so, namely, cohabitants’ choice to marry and

their freedom to make law for themselves. In this part, deepening the paper’s interest for

comparatists, we focus on the civil law tradition (Glenn 2014), specifically on the narrow

interpretation of its resources that underwrites legal discourse on cohabitation in France and

Quebec.

The focus on cohabitants’ freedom to devise a regime for themselves using contract is

resilient. In France, from the mid-1980s through the 1990s, proposals circulated for variably

named and structured contracts that would regulate cohabitants’ private relations, producing no

third-party effects (Mayaux 1986) (Granet Juris-classeur code civil art 515-8 (2010), §2.).

However, this purely private-law contract seemed not to respond to a genuine social demand. It

is another type of contract – a partnership contract producing a genuine couple status, with third-

party effects, with default content so that parties need not negotiate from scratch – that has found

significant uptake. We refer to the PACS, created with same-sex couples in mind, but which
 20

different-sex couples have taken up to the point that it is giving marriage a run for its money.

Thirty years after proposals for cohabitant contracts in France, a committee mandated by the

Quebec government to recommend reforms to family law landed on a guiding principle of

protecting the couple as a space for autonomy of the will and contractual freedom and an

emphasis on cohabitation contracts.3 In the committee’s estimation, adding the contract of de

facto union, including mention of the possibility of opting into elements of marriage law, would

‘contribute, without a doubt, to demystifying and democratizing’ this instrument (Comité

consultatif sur le droit de la famille 2015, 148 [authors' translation]).

Our primary aim is not to criticize the repeated emphasis on cohabitation contracts as

policy. There are certainly bases for doing so. In Quebec, Moore has observed that on the

cohabitation question it is odd to rely on a vision of autonomy that ‘everywhere in the law of

contract, is today seen as archaic and fantastic’ (2010, 109 [authors’ translation]). France and

Quebec seem similar enough that, without good reason to expect different results, the reform

committee’s proposal in 2015 looks more aspirational than realistic. The idea that adding

cohabitation contracts to the Civil Code will radically alter social practice might exemplify civil

lawyers’ reverence for the Civil Code as ‘sacred Text’ (Legrand 1995, 333). The whimsical

might detect in it a civil lawyer’s version of magical realism.

Our interest lies in reading the prevailing approach to cohabitation as symptomatic of a

particular interpretation of the civil-law tradition. This approach stitches together three elements

3
Space constraints preclude doing justice to the subtlety of the committee’s 800-page report, which proposes a
mandatory parental regime for a child’s legal parents (Comité consultatif sur le droit de la famille 2015, 93-136).
The committee recommended extending to cohabitants the current marriage law’s compensatory allowance, a
discretionary mechanism based on principles of unjust enrichment. Doing so would relieve judges from the pressure
of unjust enrichment claims from cohabitants under the law of obligations. The committee indicates that such a
reform would be consistent with the committee’s principle of respecting adult autonomy and contractual freedom,
on the basis that this equitable remedial measure, unlike other mechanisms of family law, does not depend on
mutual consent (Comité consultatif sur le droit de la famille 2015, 151-152).
 21

around the idea of cohabitants as legal strangers. One, philosophical, is a robust emphasis on

freedom of choice, which takes the absence of legal impediment as the guarantee of genuine

freedom. Another, instrumental, is a reliance on contract as the device par excellence by which

free legal subjects modify their legal situation. This element draws force from a cultural

touchstone of French civil law, the Civil Code’s declaration that ‘[a]greements lawfully entered

into take the place of the law for those who have made them’ (art 1134 CC, Legifrance, trad. by

David W. Gruning). The final, epistemological, is an approach by which commitment or

undertaking is knowable solely by formal means. That is, only the formal ‘juridical acts’ – in the

civil law, manifestations of intention in a manner and form designed to legal effects (Quebec

Research Centre of Private & Comparative Law 2003, 162) – of marriage and contract signal

willingness to take on legal obligations or responsibilities.

This focus on formal means as the legally relevant expressions of choice and consent

interprets cohabitation as an affirmative choice not to marry and, thus, to remain outside marital

rights and obligations. From the facts of an ongoing cohabitation union without a contract, it

highlights the potentially weaker partner’s choice to remain in the relationship despite a

precarious position. It erases the potentially stronger partner’s tacit choice to stay in the

relationship, fostering reliance and encouraging relationship-specific investments on the

partner’s part. The key point is not, then, the focus on consent to obligation. It is the decision to

take only a narrow set of formal actions as signalling choices and consent, thus precluding

attention to ‘juridical facts’, occurrences that produce legal consequences (Quebec Research

Centre of Private & Comparative Law 2003, 162). This cramped approach limits the thinkable

possibilities, including the ways of characterizing cohabitants and options for modifying the law.

Cohabitation is not the only question on which the confines of rigid reliance on binary categories
 22

and a repudiation of grey zones are discernible (see e.g., on the boundary between French

contractual and extra-contractual liability, Moréteau 2011, 176-179, paras 4-10).

In some jurisdictions where scholars reiterate it, this tripartite approach is unconvincing

in the light of the positive law. The legislative drafters who detect in cohabitation a legally

legible relational commitment relevant to social security and taxation do not hold to this

approach. Nor do those who assimilate cohabitants’ rented dwellings to those of married spouses

or characterize cohabitants’ disputes as familial for procedural purposes. Nor, again, do judges

who have eased cohabitants’ path to claims in unjust enrichment. Admittedly, conservative

civilians toeing the hardest line might fall back on the distinction between public law and private

law to reject the pertinence of these examples involving legislative drafters. They might also

impute error to the judges in the final case.

The approach combining choice, contract, and formal expressions of commitment results

from a reading of the civil-law tradition that is partial in both senses. A subtler reading of the

resources of the civil tradition nuances the picture. The twentieth century saw the adoption of

protective measures in regimes of contract that complicate reliance on unmodified versions of

freedom of contract. Moreover, devices – in the law of obligations, good faith in extra-

contractual dealings, the undeclared partnership, and implied mandate; in family law,

uninterrupted possession of status – enrich the repertoire of indications of legally relevant

relations beyond formal acts. Expunging such complicating elements violently simplifies the

civil tradition. In a comparatist’s trenchant words, ‘[e]legance, far from being a mere ornament

that would be superimposed on legal reasoning, is that reasoning itself’; indeed, he continues, it

is the ‘visible side of the logical rigour that is understood by civilians to define legal rationality’

(Legrand 1995, 336 [footnote omitted]). In a dazzling example of the phenomenon, Quebec’s
 23

reform committee arrived at policy recommendations on cohabitation – autonomy of the will and

contract – which are the very premises that framed its inquiry. A number of policy outcomes are

defensible regarding cohabitation. What is worrisome, and in our view unsatisfactory, is

presenting as policy a set of factors that, ‘at the level of mentalité … mould the structures of

thought legal actors use to interpret and understand the social world around them and their own

location within it’ (Legrand 1995, 311). Perhaps cohabitation in France and Quebec offers,

ultimately, an example of law-reform discourse as legal autobiography.

CONCLUSION

Insights from critical literature on boundaries and law reform highlight the contingency

and permeability of several major boundaries around marriage and cohabitation. Categories and

their legal significance shift even in the face of ostensible legislative inaction. Thus a

‘conservative’ approach to marriage and cohabitation has not wholly ‘conserved’ marriage in

Quebec and France. Even if obvious to a stripe of critical reader, our reminder of the facticity of

legal boundaries has political valence. Conservative scholars, especially in the civil tradition,

continue to take boundaries as ‘closure’ and justifications for the status quo (Bourdieu 1987,

834), rather than as contestable distributions of power and privilege. Thus the institutional

character of marriage is its own justification. For them, it self-evidently justifies the intense,

solidarity-based obligations entailed by marriage and, simultaneously, the refusal to discern

undertaking or obligation on the part of those in the mere factual situation of cohabitation. But

the prevailing justification based on choice fails to discipline the ensemble of legal measures

affecting cohabitants. Even as it undergoes repetition, it is plain that the faith of some legal

participants in the dogma of choice wavers significantly.

 24

This paper diagnoses legal discourse in France and Quebec as symptomatic of a reductive

view of the civil tradition, one that emphasizes the role of choice, contract, and formal

undertakings to the detriment of complicating, complementary elements. Identifying underlying

causes must await another day. Even if Quebec’s minority location and the links often posited

between an ostensibly distinctive culture and the civil tradition (and the French language) might

predictably foment monolithic simplifications in the service of easier preservation, such factors

ought not to apply in France. It is obvious that legislatures may recognize cohabitants differently

from jurisdiction to jurisdiction (compare Sutherland 2013, Tobin 2013). What is less obvious is

the call, modelled by this paper, to understand legislative inaction as a site for fruitful

comparative inquiry. In other jurisdictions where reform has stalled, such as England and Wales,

culturally minded legal scholars should not hesitate, then, to take the baton from their

disappointed and more instrumental, policy-oriented colleagues. They might then draw out the

insights relevant to broader understandings of legal culture and legal traditions.

CASES CITED

Couture c Gagnon [2001] RJQ 2047 (CA).

Droit de la famille—132495, 2013 QCCA 1586, [2013] RJQ 1527.

Jones v Kernott [2011] UKSC 53, [2012] 1 AC 776.

Kerr v Baranow 2011 SCC 10, [2011] 1 SCR 269.

Marenc v. France, App. N° 66686/09, 21 September 2010, ECtHR.

Miron v Trudel [1995] 2 SCR 418.

Oliari & Others v Italy Applications Nos 18766/11 & 36030/11, 21 July 2015.

Quebec (Attorney General) v A 2013 SCC 5, [2013] 1 SCR 61.

 25

Schalk and Kopf v. Austria, App. No. 30141/04, Merits, 24 June 2010, ECtHR.

Stack v Dowden [2007] UKHL 17, [2007] 2 AC 432.

Vallianatos and Others v Greece, Application Nos 29381/09 32684/09, Merits, 7 November

2013.

Van der Heijden v. Netherlands, App. No. 42857/05, Apr. 3, 2012, ECtHR (G. Ch.).

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