미국에서의 사실혼해소와 재산분할
The Division of Cohabitation Property upon the Dissolution of Cohabitation in the U.S. Family Law
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In the modern society, the husband-wife relationship is generally set up through the marriage institution. The Korean Civil Code sets forth requirements for establishing legal or formal marriages and provides benefits to those who enter into the marriage. A legal marriage can be established when satisfying those requirements, which are an agreement to live as husband and wife, sharing main residence and life, and registration. However, there are some couple who live together as husband and wife without registration. The Korean Civil Code do not treat them as legally married, but courts and scholarship have recognized that it is necessary to provide some benefits to those cohabitants. It is because cohabitations are not too much different from formal marriages in the context that they also involve living as husband and wife and sharing life. It is unpersuasive that cohabitants do not deserve legal benefits of formal marriage due to the lack of registration. Nevertheless, it is unsupported that law should impose full benefits of formal marriage on cohabitants because the full-scale protection for cohabitants would harm the institution of marriage. In this light, a more important problem is to define the extent to which cohabitants can be treated as married people. Especially, it is necessary to resolve the problem of property division upon the dissolution of cohabitation. In response, this article aims to provide an implication for the division of cohabitation property by analysing the U.S. cohabitation laws. Specifically, it mainly concentrates on cases and statutes concerning cohabitations. Furthermore, it deals with “the Principles of the Law of Family Dissolution” by the American Law Institute(ALI), which consider many of the foundational questions in family law including the cohabitation issues.
Abstract
In the modern society, the husband-wife relationship is generally set up through the marriage institution. The Korean Civil Code sets forth requirements for establishing legal or formal marriages and provides benefits to those who enter into the marriage. A legal marriage can be established when satisfying those requirements, which are an agreement to live as husband and wife, sharing main residence and life, and registration. However, there are some couple who live together as husband and wife without registration. The Korean Civil Code do not treat them as legally married, but courts and scholarship have recognized that it is necessary to provide some benefits to those cohabitants. It is because cohabitations are not too much different from formal marriages in the context that they also involve living as husband and wife and sharing life. It is unpersuasive that cohabitants do not deserve legal benefits of formal marriage due to the lack of registration. Nevertheless, it is unsupported that law should impose full benefits of formal marriage on cohabitants because the full-scale protection for cohabitants would harm the institution of marriage. In this light, a more important problem is to define the extent to which cohabitants can be treated as married people. Especially, it is necessary to resolve the problem of property division upon the dissolution of cohabitation. In response, this article aims to provide an implication for the division of cohabitation property by analysing the U.S. cohabitation laws. Specifically, it mainly concentrates on cases and statutes concerning cohabitations. Furthermore, it deals with “the Principles of the Law of Family Dissolution” by the American Law Institute(ALI), which consider many of the foundational questions in family law including the cohabitation issues.
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