英文在家庭法中同居应该至关重要吗v13n2-414.pdfVIP

SHOULD COHABITATION MATTER IN FAMILY LAW? Steven K. Berenson∗ I. INTRODUCTION The fact of whether a married or unmarried couple is cohabitating may have a significant impact on a number of family law doctrines.1 Perhaps the best known of these doctrines involves the question of whether a party to non-marital cohabitating relationship is entitled to a share of property accumulated by the other party during the relationship upon its termination.2 However, for married couples, whether or not they are cohabitating may have an impact on a number of important doctrines. For example, in California, if a child is born to a woman who is cohabitating with her husband, the child is “conclusively” presumed to be a child of the marriage.3 However, if the couple is living apart at the time the child is born, the husband is merely the child’s “presumed” father,4 and must compete with others who qualify for presumed father status in order to be determined to be the child’s legal father.5 Historically, a husband could not be convicted of raping his wife.6 However, the so-called marital exemption to the crime of rape did not apply in some jurisdictions if the couple was not cohabitating at the time of the offense.7 Finally, in another well known family law doctrine, a court generally will not ∗ © 2011 Steven K. Berenson. Associate Professor of Law, Thomas Jefferson School of Law, San Diego, California. The author wishes to thank Professors Margaret F. Brinig and Margaret Johnson, for comments on an earlier draft, and Deanna Sampson, for continuing support. 1 For the most part, the law defines cohabitation as a relationship where an unmarried couple resides together while maintaining a sexual relationship.