Cohabitation’s boundaries and the confines of tradition

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 comprehensively 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 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 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 amendments 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 concerns 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. Theoretical resources from critical geography, 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 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 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, French and Quebec enactments are subject to a fundamental law of human rights interpreted in the last instance by a supranational or otherwise higher court. In the French case, the European Court of Human Rights (ECtHR) interprets the European Convention on Human Rights; the Court of Justice of the European Union (CJEU), 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 inconsistent provincial law to be invalid. In both, then, the jurisprudence of fundamental rights constrains the legislature’s policy in family matters, producing a unifying effect that is 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 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 sociolegal studies, 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 compelling. This literature on borders emphasizes that the social construction of boundaries 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 (Kolossov, 2005: 624; Newman and Paasi, 1998: 195). Borders separate the ‘self’ from the ‘other’, but that act of separation may constitute the distinction it purports to recognize (Newman, 2003: 14–15). These processes of definition and separation are enmeshed 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 the 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 also constitutes a class of heterosexuals (Halley, 1993: 83), defining marriage also constitutes 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 as inconsistent need not undermine its force. To the contrary, ‘definitional incoherence is the very mechanism of 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 strand is work by sociolegal 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 inaction. Sociolegal discourse resonates with that of queer scholars. For instance, reforms to the status of children born outside marriage alter the significance and position of marriage (Carbonnier, 2008: 262–263). 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 most a factual situation. Still, the legal proposition by which cohabitants do not form a family has become unsustainable. Legislation in France and Quebec attests that the legal approach to marriage and cohabitation no longer tracks faithfully the opposition between family and not-family.

Before giving examples of cohabitants’ place vis-à-vis family law, it is appropriate to flesh out the chief justification for legislative policy in their regard. In the past, it was the immorality of concubinage, an evaluation that dovetailed with Roman Catholic teachings, at least since the Fourth Council of the Lateran in 1215. Nowadays, the justification – cast in neutral terms consistent with a liberal separation of church and state – 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, 2013: 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 para 384). Whether or not contemporary authors cleave to this view, some 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.

Whilst cohabitants find themselves in movement across the boundary between family and not-family, the core provisions on marriage still give credence to the view of cohabitants as not-family. The Civil Codes of France and Québec 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 (article 653 CCQ a contrario; articles 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]’ (article 515–8 CC, Legifrance, trans. by David W. Gruning). For its part, the Civil Code of Québec includes no definition of de facto spouse. Instead, Quebec’s 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 …’ (section 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 relationship form open to same-sex couples (in France, the pacte civil de solidarite (PACS) in 1999; in Quebec, the civil union in 2002). It is as if, whilst same-sex relationships move ‘from “odious crime” to “gay marriage”’ (Cretney, 2006), becoming ever more speakable, law must also speak of other types of union. The dynamic character of the boundary between marriage and cohabitation is observable where a challenge to marriage – or at least to its exclusivity as the sole option for adult couples – spurs developments outside marriage. The choice in Quebec to define de facto spouses in a law other than the Civil Code – the vocation of which is setting out the basic notions of private law and social life (Brierley and Macdonald, 1993: 100 para. 87) – bespeaks the drafters’ ambivalence. They could no longer ignore cohabitation but declined to legitimate it by definition in the ‘social constitution’ (Brierley and Macdonald, 1993: 34 para 32, discussing Carbonnier, 1986: 309).

Yet both Civil Codes are not wholly silent on the question of de facto spouses. Ad hoc recognition destabilizes the boundary between family and not-family. Where an incapable adult has not authorized someone to make care decisions on his or her behalf, the de facto spouse may do so (article 15 CCQ; article 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: articles 1938, 1974.1 CCQ; Law 89-462 (6 July 1989), article 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, limiting landlords’ contractual and property rights.

Cohabitants occupy an ambivalent place in the field of filiation and parenthood. In both jurisdictions, law still takes account of parents’ relationship or civil status. It is thus easier for children born into a marriage or a civil union to establish their filiation than for children of unmarried parents (presumption of paternity; power of one parent to declare parentage for the legal spouse: articles 525, 114 CCQ; article 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’ (article 555 CCQ). By contrast, the French Civil Code restricts adoption by more than one person to married spouses (article 346 CC). Downstream of establishing parentage or filiation, however, neither the French nor the Quebec code distinguishes 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 to forming a family by having children in a way that de facto spouses have not.

De facto spouses’ familial character is most undeniable when disputes arise on relationship breakdown. In such settings, judges do not accept the legislative drafters’ cue that de facto spouses are not family. Although, strictly speaking, only legal spouses have one, judges at times speak of cohabitants’ family residence (Leckey, 2009b: 560). Procedural law frankly acknowledges de facto spouses’ familial character. Mandatory information sessions on mediation in family matters now reach de facto spouses for their property disputes (article 417 CCP (new); article 127 CPC). The French judge for family matters (JAF), competent in respect of married spouses’ proceedings for legal separation or divorce, is also competent for all kinds of disputes opposing 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 lodging. 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, de facto spouses’ hybrid character undercuts claims that the legal boundaries of family are natural or historically stable. Sprinkling privileges associated with marriage on the field of cohabitation, and increasingly over time, has denaturalized 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 recognition 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. The article next addresses a further disjuncture between the positive law applicable to cohabitants and the justification based on their freedom of choice.

Family law and the general private law

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 shielded lawyers and judges from pressure to address the fallout of unmarried intimacy. Judges acknowledge the family dynamics of cohabitants when they adapt for them rules conceived for commercial parties interacting 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.

The basic notion is that de facto spouses – like any individuals – are subject to the general private law 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 article 768 CCLC). In 1999, the French Cour de cassation admitted the validity of gifts and bequests to an adulterous cohabitant (Favier, 2015, 2013: 508 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 cohabitants are purporting to access the benefits of marriage covertly (Couture v. Gagnon). There are severe limits, however, on the French courts’ willingness to enforce the clauses in cohabitation contracts addressing undivided co-ownership and alimony between cohabitants. Clauses may be unenforceable on account of their cause’s being inexistent or illicit (Favier, 2013: 506 para 142.17). Note that in both jurisdictions, cohabitation contracts cannot affect the rights of third parties, such as creditors – in contrast with marriage’s rules.

Do judges see justification for cohabitants’ position in their freedom to marry or to craft protections via the general private law? Arguably, if so, judges would not adapt the private law to the cohabitation context. Instead, judges have registered de facto union’s specificity in the law of obligations. Thus, recognition of an undeclared partnership sometimes provides a remedy to an estranged de facto spouse. There are hurdles, though, to proving a contract of partnership in such cases (Lefebvre, 2012b: 25 para 37; Morin, 2008). The claimant for a division of property and gains – be it on separation or the other’s death – must prove an affectio societatis, the psychological element characteristic of a partnership (Cornu, 2014: 42; on the French ‘société créée de fait’, see Cass civ 1^re, 20 January 2010).

The doctrinal path preferred by the Quebec Court of Appeal and the French Cour de cassation for remedying the potential injustices from cohabitation is unjust enrichment. Since 2008, the Cour de cassation has envisaged compensation for a cohabitant’s contributions to household expenses. To facilitate a former de facto spouse’s claim, the Quebec Court of Appeal has adopted presumptions that the defendant’s enrichment correlates to the plaintiff’s impoverishment and that enrichment is unjustified (Lluelles and Moore, 2012: 749 n.72). Moreover, Quebec courts have cautiously 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; e.g. Droit de la famille—132495). The Court of Appeal purports to tread the fine line between recognizing the injustice potentially arising from cohabitation and respecting the legislative decision not to subject cohabitants to a regime of sharing (compare the English judges’ adaptation of trusts law to the ‘domestic consumer context’: Stack v. Dowden: para 58; Probert, 2007; Leckey, 2016).

In effect, the decision to keep a consequential boundary between the married and the unmarried in family law has moved or rendered porous the boundary between family law and the general private law. A family textbook’s coverage of adult couples now requires elements of partnership and unjust enrichment that were once the exclusive domain of books on obligations (e.g. Pineau and Pratte, 2006: 566–79 para 383). A volume on obligations may now dedicate discussion to de facto spouses (e.g. Baudouin et al., 2013, 640–644 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 the law of obligations, reducing its abstractness and generality. Views may differ on the trade-off’s fairness. Importantly, though, parliamentary debates on family policy do not usually foreground the prospect of such a trade-off. The article’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 doubt whether choice justifies family law’s distinctions between marriage and cohabitation, this part suggests that the legislative drafters responsible for family policy in the Civil Codes seem half-hearted about the distinction. Bringing together private family law and public law on the cohabitation question leads to a better appreciation of their variable boundary. It shows further the gap between the positive law and the justification based on choice.

The point of departure is cohabitants’ different positions 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 those jurisdictions assimilate de facto spouses to spouses by marriage or by civil union (e.g. Tétrault, 2010: 854). These laws provide some benefits. They also impose disadvantages, in a form of ‘deprivative recognition’ (Aloni, 2014). For example, the Quebec government reduces means-tested benefits by reference to household income, on the assumption that de facto spouses share resources. This presumption of pooled resources is irrebuttable. That is, individuals may dispute the facts underlying their characterization as de facto spouses, but once recognized as such, they cannot displace the presumption that they pool resources. Moreover, if the government overpays benefits to one partner, both are jointly and severally liable for repayment. 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 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 their freedom to marry (as it is for private law’s laissez-faire). It may be that the decision to live together represents a badge of commitment, but private family law does not take conduct as such.

Public law and private family law thus pursue distinct approaches. Under public law, cohabitants form an economic unit. Under private law, they are individuals free to bargain and contract with one another at arm’s-length. Is this difference intrinsically problematic? Common lawyers may tolerate better than their civil law counterparts that a term, such as de facto spouse, varies contextually 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 marriage and cohabitation illuminate the variable character of the boundary separating public law from 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. Chronologically, public law’s approach followed private law’s recognition of familial obligation. The private law of the family has historically imposed economic obligations within marriage – until 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 spouses’ execution of their obligations under the private law of marriage increases overall utility (although the literature praising marriage for its pay-offs in income, health, and happiness, especially prominent in the United States, may confound correlation with causation). The justification for public law’s spousal disadvantages may be the resource sharing and economies of scale associated with the private law of marriage’s obligations to contribute to household expenses and indeed to live together.

By contrast, public law and private law embody opposing approaches to cohabitation. Combined, 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). Whatever its abiding force in structuring legal thought, the boundary between public law and private law fails to keep these approaches wholly 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 cogency 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’ reception of fundamental rights claims by cohabitants.

Law and politics

Critical views of law and politics as inseparable and of human rights as inevitably a political enterprise call for clarifying our contention. Despite litigants’ efforts, principles of human rights have not invalidated the sharp difference in treatment of married and unmarried couples under the family law of France and Quebec. Indeed, courts have evinced reluctance to use human rights instruments to strike down a legislature’s policy on cohabitation. Judgements hint at sensitivity to this question’s political stakes. It is not simply that politics infuses 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 – although again it 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 (2013) was a challenge to the exclusion of de facto spouses from the provisions entailed by marriage. The claim arose under the Charter’s equality guarantee. 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, holding that individuals will not always have effective control over their marital status. The Court had found unjustifiable discrimination where legislation standardizing insurance contracts withheld indemnities from unmarried partners (Miron v. Trudel). In the later judgement, 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 have meaningfully 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 justifiable, reasoning that a legislature might validly promote autonomy and choice. She referred to the values of federalism and provincial legislative competence, matters not normally relevant to proportionality analysis. 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 overriding Quebec legislative policy via the Charter (Chaudhury and Rouleau, 2013).

In the case of France, the CJEU and the 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 cohabitation. Article 12 of the Convention protects the right to marry; as said about spousal testimonial privilege, marriage legitimately ‘gives rise to social, personal and legal consequences’ (Van der Heijden v. Netherlands: para 69). Similarly, French appellate courts and the ECtHR have regarded as justified a restriction of survivor benefits to married spouses (Manenc v. France). ² In general, the European jurisprudence grants a wide ‘margin of appreciation’ to states concerning the right to protection of private and family life and the equality of treatment of married versus unmarried couples. 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).

The contrast that makes this disinclination to override legislative policy so interesting emerges from claims by same-sex couples. Canadian courts held 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 ECtHR 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; e.g. Johnson, 2015). More recently, the ECtHR 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.

In short, whilst the issues are different, deference to the political choices of national legislatures seems greater on cohabitation than on same-sex relationships. The courts are not, then, deferring to legislatures in respect of 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 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 expose the shifting boundary between law and politics. Furthermore, the finding of discrimination in the Quebec cohabitation case discloses 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 adduced 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 underlined the gap between legislative and judicial acknowledgements of cohabitation and the private law’s justification for not doing so: cohabitants’ presumed choice not to have married and in any event their freedom to make law for themselves. Deepening the paper’s interest for comparatists, this part focuses on the civil law tradition (Glenn, 2014). A narrow interpretation of that tradition’s resources underwrites legal discourse on cohabitation in France and Quebec.

The emphasis 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 article 515–8 (2010), section 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 proper 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 different-sex couples have taken up to the point that it is giving marriage a run for its money. Three decades after proposals for cohabitant contracts in France, and in the wake of the Supreme Court of Canada’s characterization of the status quo as justifiable discrimination against cohabitants (Quebec (Attorney General) v. A), the Quebec government tasked a committee with recommending reforms to family law. The committee 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, naming the contract of de facto union in the Civil Code and specifying 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 recurrent 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.

The 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 around the idea of cohabitants as legal strangers. One, philosophical, is a robust emphasis on freedom of choice, which takes the absence of legal disability as the guarantee of genuine freedom. Another, instrumental, is a reliance on contract as the device par excellence by which free, formally equal 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’ (article 1134 CC, Legifrance, trans. 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 produce legal effects (Quebec Research Centre of Private and Comparative Law, 2003: 162) – of marriage and contract signal willingness to take on legal obligations.

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 without a contract, it underscores the potentially weaker partner’s choice to remain in the relationship, thereby accepting her 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 other’s part. The key point is not 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 and 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 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 this tripartite approach, the positive law makes it unconvincing. The legislative drafters for whom cohabitation is legally legible as a 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 impute error to the judges who have adapted unjust enrichment.

The approach joining 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 20th 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 pre-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. Such simplification and the aesthetic lure of a single overarching idea – here autonomy – has roots in the civil tradition, although ultimately it disserves it. 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 reform committee, struck in response to a judicial finding of discrimination against cohabitants, arrived at policy recommendations – 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 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). Critical comparatists have observed that ‘the comparatist’s cultural, historical, and personal preconceptions inevitably shape the way she perceives and compares’ (Frankenberg, 1985: 416; see also Frankenberg, 2014). It is fair to say, though, that scholars of law reform have studied less the extent to which law reform within a jurisdiction holds up a mirror. Perhaps cohabitation in France and Quebec offers, ultimately, an example of law-reform discourse as legal autobiography or self-portrait.

Conclusion

Insights from critical literature on boundaries and law reform highlight the contingency and permeability of several major boundaries around marriage and cohabitation. Even in the face of ostensible legislative inaction, categories and their legal significance may shift. Thus, a conservative approach to marriage and cohabitation in Quebec and France has not wholly ‘conserved’ marriage. 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, persist in taking boundaries as ‘closure’ and as 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 merely factual situation of cohabitation. But the prevailing justification based on choice fails to discipline the ensemble of legal measures affecting cohabitants. Even as the dogma of choice undergoes repetition, some legal participants’ faith in it wavers unmistakably.

This article 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 (Samson and Langevin, 2015: 721–722), 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). Less obvious is the call, modelled by this article, to understand legislative inaction as a promising site for 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 insights relevant to broader understandings of legal culture and legal traditions.