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In contrast with prescriptions for law reform for unmarried cohabitants, this article studies legislative inertia on the subject. It compares France and the Canadian province of Quebec, drawing on theoretical treatment of boundaries from critical geography, queer theory, and sociolegal work on law reform. Abstinence from legislating for cohabitants has not secured legal stasis. Informally and indirectly, ad hoc responses to cohabitation have amended the boundaries of marriage and fundamental legal categories. A conservative approach to marriage and cohabitation has failed to conserve marriage. We identify a gap, not between law and social life but between law and its prevailing justification, that cohabitants are free to choose to marry or to conclude contracts. Legislative and judicial developments show that this justification fails to persuade. Finally, we read France and Quebec’s approach to cohabitation as symptomatic of an impoverished misreading of the civil law tradition. [ABSTRACT FROM AUTHOR]

The paper intervenes in current policy debates on unmarried cohabitation and comparative law debates on methodology. It adopts a culturally alert, discursive methodology of comparison to study regulation of unmarried cohabitation under the common law and civil law as well as the effect of an entrenched right to equality protecting against marital status discrimination. It identifies not different legislative solutions to a common problem, but distinct discourses of family law regulation. Yet the approaches are less radically opposed than is often thought. Discursive comparison tends to highlight dominant voices at the expense of minority ones, wrongly characterising minority views as foreign to a tradition. Discursive comparison should not confine itself to a synchronic view of present legal debates; a richer diachronic approach will also attend to views within a legal tradition's past. [ABSTRACT FROM AUTHOR]