*1 No. 30520. Dec. [L.A. 1976.] MARVIN, Plaintiff Appellant,
MICHELLE MARVIN, LEE and Respondent. Defendant *5 Counsel Ross, Woldman, M. Mitchelson, M. N. Robert Fleish-
Marvin Donald McDaniel, man, Brown for Brown & Weston and David M. Plaintiff Appellant. Amici on Miller and Suzie S. Thom as Curiae
Jettie Pierce Ruth Selvig, Plaintiff and behalf of Appellant. R. & Mark A. Goldman and William Bishin for
Goldman Kagon, Defendant and Respondent. Sutter, Treuhaft, Walker, Hill Doris Brin Walker and
Herma John Kay, on of & Hendon as Amici Curiae behalf Defendant Nawi Respondent. Shenk Amici Grant, Stone & H. Grant and
Isabella Livingston, Curiae.
665 Opinion a substantial has been 15 there
TOBRINER, J. years, past During without of in the number marrying.1 increase together couples living when one lead Such nonmarital controversy legal relationships with the of faced Courts dies or Appeal, couple separates. partner cases, arrived at in such have task of determining property rights 34 re (1973) two cases (In Cary Marriage conflicting positions: Estate 862]; Atherley Cal.Rptr. Cal.App.3d held Law Act have that 41]) Family Cal.Rptr. Code, et division of (Civ. property according § seq.) requires (Beckman and one decision Mayhew community principles, that has 604]) rejected holding. Cal.Rptr. to declare the this resolve We take controversy opportunity distribution which should acquired govern principles nonmarital relationship. Law Act do not The
We conclude: (1) govern provisions a nonmarital the distribution relationship; property acquired during decision. (2) such a remains solely judicial subject courts should enforce contracts between express to the extent the contract founded on the except explicitly In the absence of an consideration of meretricious sexual services. (3) contract, the courts should into the conduct of the inquire express contract, to determine whether that conduct demonstrates an implied venture, or some other tacit under- joint partnership between the The courts also the doctrine of standing parties. may employ meruit, or remedies such as constructive or quantum resulting equitable trusts, when warranted the facts of the case. *6 for
In the and defendant lived seven instant case together plaintiff this was without all during period years acquired marrying; property a contract When sued to enforce taken in defendant’s name. plaintiff to to the under which she was entitled half support for the trial court pleadings granted judgment payments, defendant, all accumulated thus him with couple leaving on a trial trial court denied Since the plaintiff relationship. during stated with the claim, decision conflicts merits of her its principles above, and must be reversed._ are times as many census indicate that today eight couples 1The 1970 figures perhaps In re (Comment, as cohabited ten ago.” without married years
living together being A Illicit Cohabitation (1974) 25 L.J. Judicial Recognition Hastings Cary: 1. The this setting appeal. factual the trial
Since court rendered for defendant on the judgment true, we must as pleadings, accept allegations plaintiff’s complaint state, whether state, such amended can be to determining allegations cause of action. (See Sullivan Los (1974) Cal.3d County Angeles 710, 714-715, fn. 3 Witkin, 527 P.2d 865]; Cal. Cal.Rptr. Procedure ed. We (2d 1971) 2817-2818.) turn therefore to the pp. specific allegations complaint. that in
Plaintiff avers October of 1964 she and defendant “entered into an oral “the while lived would agreement” together they combine their efforts and and would share and all earnings equally any , accumulated as a result of their efforts whether individual or Furthermore, combined.” to “hold themselves out to the they agreed as wife” husband and and that would further general public “plaintiff homemaker, render her services as a and cook companion, housekeeper to ... defendant.” thereafter lucrative her career as
Shortly plaintiff “give agreed up an entertainer order her full “devote time to singer” [and] homemaker, as a cook;” defendant... companion, housekeeper return defendant for all of financial agreed “provide plaintiff’s and needs for the rest of her life.” support
Plaintiff that she with lived defendant from October of 1964 alleges of 1970 her and fulfilled under through May obligations agreement. this a result of their efforts and During period earnings in defendant’s name substantial real and acquired personal property, $1 motion worth over In million. including picture rights May however, defendant to leave his household. He plaintiff compelled continued to until November of but thereafter support plaintiff refused to further provide support.
On the basis of these asserts two causes of action. plaintiff allegations first, relief, her asks court to determine declaratory the second a constructive trust seeks property rights; impose one half of the the course of relationship. property acquired during *7 the com
Defendant demurred and then answered unsuccessfully, extensive discovery Following pretrial plaint. attack on the renewed his Defendant came to trial.2 the case proceedings, that had Since motion to dismiss. stipulated a complaint until the of did not terminate Marvin filing defendant’s Betty 1967, court treated the trial of divorce a final decree January motion as one for augmented by pleadings defendant’s judgment the stipulation. motion defendant’s the court
After granted hearing argument to set aside Plaintiff moved defendant. for entered judgment she and her leave to amend allege and asked complaint judgment was final. defendant’s divorce after reaffirmed defendant agreement motion, from the and she trial court denied appealed The plaintiff’s judgment. breach an a cause action states
2.
complaint
for
of
of
Plaintiff’s
contract.
express
we
protect property.” In the case before us her cause of action contract plaintiff, basing these maintains that the trial court erred in her upon precedents, denying a on trial the merits of her contention. . that court did not Although for its conclusion that contractual specify ground plaintiff’s allega- action,3 tions stated no cause of defendant offers some four theories to sustain the we to examine them. ruling; proceed
Defendant first and relies on the contention that principally is so related to alleged “immoral” closely supposed character between and himself that relationship plaintiff enforcement of the contract would violate He public policy.4 points cases that a contract between asserting nonmarital is unen forceable if it is in” “involved an illicit Shaw v. (see Shaw relationship 159, 227 (1964) 164 Garcia Cal.App.2d (dictum); v. Cal.Rptr. [38 520] 106 364, (1951) 368 P.2d Venegas or made Cal.App.2d (dictum), [235 89] of such a (Hill v. Estate “contemplation” Westbrook relationship 599, 95 (1950) 602 P.2d see 727]; Hill v. Estate Cal.App.2d [213 458, Westbrook 39 (1952) Cal.2d 460 P.2d Barlow v. 19]; Collins [247 274, (1958) P.2d v. (dictum); Cal.App.2d Bridges Bridges [333 64] 359, (1954) A review (dictum)). 69] numerous California decisions contracts between nonmarital concerning 3The between court and counsel at colloquy on the motion for argument on judgment that the pleadings suggests trial court held the 1964 violated public policy because it Marvin, derogated community property rights defendant’s lawful Betty Plaintiff, however, wife. offered to amend her that she and defendant complaint allege reaffirmed their contract after defendant and were divorced. The trial Betty court denied amend, leave to which ruling the court’s suggests must rest judgment some other than the ground assertion the contract would injure Betty’s property rights. 4Defendant also contends that the contract was it because illegal contemplated 269a, violation of former Penal Code section which “in a state of prohibited living 71, 1, (§ cohabitation and 269a was adultery.” Stats. ch. eff. Jan. repealed Defendant’s to raise the issue is standing because he alone was married and questionable Plaintiff, thus section guilty 269a. unmarried violating being could neither be convicted of adulterous cohabitation nor of aiding defendant’s violation. abetting (See In 318].) re 162 Cal. 85-86 P. Cooper The numerous cases the contractual discussing rights unmarried have couples drawn no distinction between and lawful illegal relationships relationships. (Cf. Weak Weak Cal.Rptr. (bigamous 9] Moreover, if we even were to draw such a distinction—a marriage).) academic largely benefit; endeavor in view of the of section 269a—defendant would not repeal probably final, his with continued after his divorce became plaintiff long plaintiff to amend her to assert that the reaffirmed their contract after sought complaint divorce.
669 such broad however, that courts have not reveals the employed partners, The decisions instead to strike down contracts. uncertain standards and contract between and more standard: a a narrower disclose precise it to the extent that is unenforceable nonmarital explicitly the consideration of meretricious sexual immoral and illicit rests services. issue, Trutalli v.
In the first to address this case Meraviglia, supra, for 11 and lived without the had Cal. years marriage parties together land had The to title to he raised children. man sued had two quiet the woman in name this his own relationship; during purchased to and hold all an defended by agreement pool earnings asserting the assertion illegality agree jointly. Rejecting ment, the this the the court “The that to action at stated that fact parties time to invest their to be held they agreed earnings jointly relation, between them in an were unlawful did not living together other, them from into a lawful with each disqualify entering agreement as so such immoral relation was not made a consideration of their long (Italics Cal. added.) (215 701-702.) agreement.” at pp.
In P.2d both 69], Bridges Cal.App.2d Bridges, were in the divorces from erstwhile process obtaining The two to live share to respective spouses. parties agreed together, and to when their divorces became equally marry property acquired, final. The a man worked as salesman and used his savings purchase children, house, for The woman cared seven three from kept properties. each former the and one from nonmarital relationship, construct When they separated, helped improvements properties. the without the court awarded the woman one-half value marrying, the contract was the the man’s contention that Rejecting illegal, property. court it the stated that: “Nowhere is testified anyone expressly was in the for the of assets and there agreement pooling anything as of accumulations that meretricious relations sharing any contemplated consideration (125 any object agreement.” part at Croslin v. Scott reiterates the 755] rule established in Trutalli and In Croslin Bridges. parties separated a The woman then following three-year relationship. phoned man, her, to return asked him that he build them suggested a lot house on she owned. She in return agreed place house, built lived man there for joint ownership. interest several more When he sued to establish his years. they separated, nonsuit, the Court of stated that Reversing Appeal property. in meretricious “The mere fact to live together parties agree does not make necessarily disposition *10 It is when the is between them invalid. only property agreement the other or the illicit in connection with made relationship agreement, that the latter becomes made a consideration properly agreement, at (154 Cal.App.2d illegal.” other cases have enforcement
Numerous agreements upheld indistin in factual between nonmarital essentially settings partners 42 (In Foster (1974) re from case. Marriage guishable present Weak, 202 Weak v. 49]; 577 Cal.Rptr. supra, Cal.App.2d Cal.App.3d [117 413 P.2d 632, 639; v. Schuenemann 167 (1959) Ferguson Cal.App.2d [334 Collins, 274, 277-278; 166 Ferraro v. Barlow v. 668]; Cal.App.2d supra, 146 849 P.2d Cline v. Festersen 168]; Ferraro (1956) Cal.App.2d [304 117 128 380 P.2d v. 149]; (1953) (1954) Cal.App.2d [275 Profit Profit 106 126 P.2d Garcia v. 25]; Cal.App.2d Venegas, supra, Cal.App.2d [255 364; 38 Padilla v. Padilla 319 P.2d Bacon (1940) 1093]; Cal.App.2d [100 5 v. Bacon 21 540 P.2d 884].) Cal.App.2d [69 hover over the in the somewhat decisions issue
Although past of a we can abstract from form figures Chagall painting, wispy decisions a clear and rule. The fact that a man and those simple in a sexual relation woman live without together marriage, engage between them to does not itself invalidate relating ship, agreements Neither is such an earnings, property, expenses. invalid because have creation merely parties may contemplated or continuation of a nonmarital when entered into it. they between nonmarital fail to the extent that Agreements partners they cases, of In re 5Defendant that all of the cited with the possible exception urges Foster, 125 42 v. 577 and Bridges Bridges, supra, Marriage supra, Cal.App.3d to enforce can be that the seeking Cal.App.2d distinguished ground partner to homemaking contributed either or services additional ordinary contract case, however, in which one services. No that a suggests pooling agreement partner invalid, and dictum Hill v. Estate contributes services is only homemaking Westbrook, 599, 603 P.2d states the A supra, Cal.App.2d opposite. promise 727] course, is, consideration for a services a lawful and homemaking adequate perform 480])—otherwise (see v. Taylor Taylor for their defendant in domestic could not sue wages—and those engaged employment of enforcement would denial no reason his distinction justify advances why proposed (1973) 44 (See Mich.App. such consideration. Tyranski Piggins contracts supported by 595, 597].) N.W.2d rest a consideration of meretricious sexual services. Thus the rule upon defendant, asserted that a contract fails if it is “involved in” or made “in of a nonmarital cannot be reconciled contemplation” relationship, with the decisions.
The three cases cited
defendant which have declined to enforce
contracts between nonmarital
involved consideration that was
founded
an illicit sexual services. In Hill v. Estate
expressly
Westbrook,
the woman
promised
keep
man,
wife,
house for the
to live
him
with
as man and
and to bear his
children;
will,
the man
for her in his
but died
promised
provide
without
so.
for the woman based on the
doing
Reversing
judgment
*11
services,
reasonable
value
her
the Court of
stated that “the
Appeal
seeks,
action is
a claim which
other
predicated upon
among
things,
reasonable value of
with
in
decedent meretricious
and
living
him two children.
. . . The law does not award
for
bearing
compensation
with a man as a concubine and
children.
...
him
As the
living
bearing
is at least in
for the value
claimed- services for
judgment
part,
had,
which
it
be
cannot be
must
reversed.”
at
(95
recovery
Cal.App.2d
retrial,
603.)
the trial court found that it could not sever the
p.
Upon
contract and
value
services
place
independent
upon
legitimate
claimant. We therefore affirmed a
for the
performed by
estate.
judgment
v.
(Hill Estate Westbrook
position v. Heaps Toy 813], In that case the woman to leave her to promised to make a man, refrain from job, to be a marriage, to the and' companion him; home permanent he the woman and agreed her child for support life. The Court of held the invalid as a contract Appeal in restraint of Code, and, Code, (Civ. 1676) marriage § as (Civ. morals” alternatively, “contrary good 1607). The § does not state that opinion sexual relations formed any part contract, consideration for the nor how—unless the contract called for sexual explain relations—the woman’s as a and could be employment companion housekeeper contrary morals. good The alternative the contract in that case holding Heaps Toy, supra, finding morals, is contrary inconsistent with the numerous good California decisions contracts between nonmarital when such contracts are upholding partners not founded consideration, an illicit and is therefore upon disapproved. The decisions in the Hill and cases thus demonstrate that a Updeck contract between nonmarital even if made in partners, expressly of a common is invalid if sexual contemplation living arrangement, acts form an of the consideration for the In inseparable part agreement. sum, a court will not enforce a contract for the pooling if it is based services earnings explicitly inseparably upon Hill, The Court of however, paramour. indicates that Appeal opinion even if sexual services are consideration, the contractual part any severable of the contract consideration portion supported independent will still be enforced. that a contract between nonmarital principle will be
enforced unless
based
an illicit consider-
expressly
inseparably
upon
ation of sexual services not
the distillation of the
only represents
law,
decisional
but also offers a far more
and workable standard
precise
than that advocated
Our
defendant.
recent decision in In re
Marriage
Defendant’s third contention is lack of noteworthy in advanced its contends He that enforcement authority support.
oral between and himself Civil is barred Code agreement plaintiff section which that “All contracts for settlements provides marriage must A settlement, however, be is an writing....” marriage each which release or contemplation party agrees *13 the would from which otherwise arise modify property rights 643, Corker v. (See 922].) Corker 87 Cal. 648 P. The marriage. (1891) 7Sections 169 and 169.2 were in 1970 Civil In 1972 Code section 5118. replaced by section 5118 was amended to that the provide and accumulations of both earnings “while and spouses from the other living separate are the apart spouse, separate property of the spouse.” 8Defendant also contends that the contract is invalid as an to agreement promote Witkin, (See 1 divorce. encourage (8th ed.) of Cal. Law and Summary 390-392 cases pp. cited.) not, however, there The between and defendant did its terms plaintiff by Moreover, defendant to divorce nor reward him for so require Betty, doing. principle on which defendant relies does not when the is apply marriage beyond question (Glickman v. Collins 13 redemption Cal.3d 858-859 Cal.Rptr. 204]); not whether or defendant’s to was when marriage Betty beyond redemption defendant contracted with is of fact which cannot be plaintiff obviously question resolved on the by judgment pleadings. definition,
contract at issue here does not fall within that and conceivably thus is of section 5134.9 beyond compass the contract
Defendant that enforcement of finally argues 43.5, barred Civil Code section subdivision which that (d), by provides “No cause of action arises for . . . breach of This promise marriage.” rather strained contention from the that a proceeds premise promise includes a and to marriage impliedly promise pool property support after v. (see acquired marriage Boyd Boyd Cal.App.2d to the conclusion 400]) Cal.Rptr. agreements pooling support not of or are barred part accompanied by promise by section. We conclude that section 43.5 is not reasonably susceptible defendant, advanced a conclusion demonstrated interpretation the fact that since 43.5 section was enacted in numerous cases have enforced between nonmarital and in none pooling agreements partners, did court or counsel refer to section 43.5.
In we base our that adults summary, opinion principle who live in sexual relations are voluntarily together engage nonetheless as as other to contract competent any persons respecting course, their Of cannot earnings property rights. they lawfully services, contract to for the of sexual for such a contract pay performance is, essence, and unlawful for that reason. agreement prostitution But their and to hold all they may agree pool earnings in accord with the law acquired during governing that each community property; conversely they may agree partner’s and the from those remains the earnings earnings acquired So as the does separate property earning partner.10 long consideration, not rest illicit meretricious order may choose, their economic and no the courts affairs they policy precludes from such enforcing agreements. instance,
In the that the present alleges plaintiff parties agreed pool their contracted to share in all earnings, they equally 9Our review of the cases between nonmarital many enforcing agreements reveals that of such were oral. In two majority agreements cases v. (Ferguson Schuenemann, Festersen, 413; 380), Cline supra, the court defenses the statute of frauds. expressly rejected grounded upon 10A might keep of other are great variety arrangements possible. *14 which one for services but to earnings agree compensate party property separate, to benefit of their earnings property, the other. choose to They pool only part may venture, tenants or form a or to hold acquired' joint partnership joint property Weitzman, common, (See tenants in other such generally or agree any arrangement. L. Rev. Tradition and 62 Cal. Legal Regulation Marriage: Change of and that defendant The terms of acquired, agreed support plaintiff. unlawful consideration. We the contract as do not rest any alleged upon conclude that the furnishes a suitable basis therefore complaint upon Witkin, the court can render relief. Cal. (See which trial declaratory in The trial court erred Procedure (2d ed.) 2335-2336.) consequently pp. motion for defendant’s judgment pleadings. granting can be to state a cause action 3. amended complaint Plaintiff’s theories contract or equitable implied relief. founded noted, in both of action As we have causes complaint allege plaintiff’s from contract; assert basis for relief an neither independent any express the contract. In In re Cary, Marriage however, that, the the Court of held in view of policy Appeal Act, in Law accumulated Family actual should be divided family relationship Upon examining equally. the to the case realized Cary opinion, present plaintiff’s with defendant cause of alleged relationship might arguably support action between the independent any express parties. have therefore briefed discussed the issue of of a nonmarital of an contract. absence rights partner express our conclusion that states a cause of Although plaintiff’s complaint action based on an contract alone us to reverse the express compels defendant, will resolution issue serve both to judgment Cary retrial and to resolve a conflict manifest guide parties upon presently Court of decisions. published Appeal Both and defendant stand in broad that the law plaintiff should be fashioned to out the reasonable carry expectations Plaintiff, however, contentions: that the parties. presents following decisions and erroneous notions of rest prior Cary upon implicit for his or her into a nonmarital punishing parly guilt entering that such decisions result in an distribution relationship, inequitable accumulated and that Cary correctly during relationship, held that the enactment of the Law Act in 1970 overturned those decisions. decisions Defendant maintains that prior prior response common law of contract and merely applied properly principles who have elected to remain outside the bounds of deliberately persons contends, erred in defendant community Cary, property system.11 11Wenote that a decision to avoid the strictures of the community property deliberate is not the live without Some marriage. couples reason that system couples together *15 the force of the Act vitiated Law that prior
holding precedents. decisions, the truth from examination
As we shall see pre-Cary The defendant. and between lies somewhere plaintiff positions Vallera, 681. 21 Cal.2d Vallera v. this on classic subject opinion Justice four-member Traynor posed for a majority, Speaking wife but with no man as his with a a woman “whether living question: reason to him married that she is belief acquires legally genuine in his of a co-tenant alone the earnings cohabitation rights Cal.2d at (21 accumulations relationship.” during period 664 P.2d 213 Cal. Nat. Bank (1931) 684.) Capital Citing Flanagan p. that her could not claim a nonmarital “wife” which held that 307], that answered estate was husband’s majority community property, that Vallera 684-685.) “in the explains “Equita- (Pp. negative.” question from the reasonable ble considerations expectation arising in entered into the status of benefits continuation of attending In the absence of case.” (P. 685.) not in such a faith are present good to share in concluded, the woman is entitled contract, Vallera express that her funds “in the accumulated only proportion jointly Curtis, Justice its (P. dissenting, toward contributed acquisition.” under which each showed an that the evidence implied argued the relation- in interest an acquired during owned equal party ship. based bar Vallera did not recovery expressly majority opinion But remedies. contract, to nor resort equitable preclude implied not “are considerations assertion that
Vallera’s broad present” equitable led the Cal.2d at 685) (21 the case of a nonmarital relationship based on Courts of recovery preclude language Appeal interpret v. Lazzarevich (1948) theories. Lazzarevich (See such be yet willing commitment that marriage implies, avoid the wish to may permanent fear the loss of others may during relationship; acquired share equally any property welfare, (see Beckman v. Mayhew, supra, from marriage or tax benefits resulting pension, as a 529). possible prelude Others may engage 49 Cal.App.3d and expense dissolving the difficulty In lower socio-economic groups marriage. many a nonmarital relationship; to choose often leads couples former marriage common law the doctrine of believe also incorrectly may unmarried couples we California, married. Consequently are in fact and thus they marriage prevails in a valid marriage not have participated mere fact that couple that the conclude intend to keep that the couple a court’s inference a basis for serve as cannot ceremony can be intention parties’ independent; separate their earnings of their relationship. into the nature a more searching inquiry ascertained *16 677 188, 82 191-192 P.2d v. 49]; (1947) Oakley Oakley Cal.App.2d [200 P.2d 848].)12 [185 when of the issue the of a nonmarital
Consequently,
rights
partner
reached this court in Keene v. Keene
This failure of
the courts to
an action
recognize
by
contract,
based
or to
an
partner
upon implied
grant
equitable remedy,
contrasts with the
treatment of the
Prior to the
judicial
putative spouse.
Act,
enactment
of
Law
no statute
to a
granted rights
putative
The courts
fashioned a
of remedies
spouse.13
variety
accordingly
,
decision. Some
cases
to recover
judicial
permitted
putative spouse
half
on a
that the
conduct of
theory
parties implied
venture.
Estate
(1974)
(See
partnership
joint
Vargas
714,
717-718
Sousa v. Freitas
779];
(1970)
Cal.Rptr.
660,
Others
485].)
Cal.Rptr.
permitted
spouse
services,
to recover the reasonable value of rendered
less the value of
95,
9 Cal.2d
received.
v.
(See
support
Sanguinetti
Sanguinetti
12The
did
cases
not
determine whether a nonmarital
could recover in
clearly
partner
meruit for the
value of
But when we
reasonable
services rendered.
affirmed a
quantum
Westbrook,
trial court
in Hill
Estate
39 Cal.2d
v.
ruling denying recovery
we did so in
on
that whether the
“rendered her services because
part
ground
partner
462)
reward”
was a
of fact resolved
her
expectation
monetary
(p.
question
against
the trial
in a
the court
court—thus
case
would allow
implying
recovery
proper
based on
meruit.
quantum
Act,
Law
in Civil Code section
classifies property acquired during
13The Family
”
“as
that such
be
requires
‘quasi-marital property,’
putative
in accord with Civil Code section 4800.
divided
dissolution of marriage
decisions affirmed
Thus in
the cases
exhibited a
Cary
summary,
prior
schizophrenic
an
contract between nonmarital
inconsistency. By enforcing
express
consideration,
unless it rested
an unlawful
courts
upon
contracts. Yet
the courts
a common law
as to
applied
principle
contracts
the common law
that holds
implied
principle
disregarded
to enforce such
arise from the conduct of
can
parties.16 Refusing
in which
contracts,
“in
the courts
position
spoke
leaving
themselves”
v.
had
(Oakley
Oakley, supra,
they
placed
delicto.
188,
if
were
as
pari
192),
just
they
guilty parties
Justice Curtis noted this
his
inconsistency
dissenting opinion
Vallera,
enforced,
“if an
will be
out
express agreement
pointing
or
reason
share
there is no legal
just
why
implied agreement
681, 686;
Bruch,
Cal.2d
see
cannot be enforced.” (21
Property
on the Value
De Facto
Including Thoughts
Rights
Spouses
And in
Homemakers’ Services (1976)
L.Q.
117-121.)
Keene,
that if the
Cal.2d
Justice Peters observed
Keene
v.
supra,
need not
that he rendered services in
expectation
14The putative spouse
prove
the reasonable value of those services.
reward in order to recover
(Sanguinetti
monetary
95, 100.)
9 Cal.2d
v. Sanguinetti, supra,
nonmarital and putative relationships
15The contrast between principles governing
Lazzarevich,
708. When
in Lazzarevich v.
88 Cal.App.2d
most strikingly
supra,
appears
Mrs.
divorce in
she discovered to her surprise
Lazzarevich sued her husband for
him,
reconciled with
married to him. She nevertheless
that she was not lawfully
The court
before
finally separated.
Lazzareviches lived
for another year
they
together
rendered,
less the value
for the reasonable value of services
awarded her recovery
received,
of the
but denied recovery
until she discovered the invalidity
marriage,
support
date.
the same services rendered after that
denote different
These terms however do not
be
or implied.
16“Contracts may
express
contracts,
between
evidence which the agreement
but have reference
by
kinds
is
the direct words of the parties, spoken
is shown. If the
shown
agreement
the parties
written,
if such
can
be
the contract is said to be an
one. But
or
express
matter
and conduct of the
in the
of the
light
subject
shown
the acts
parties, interpreted
circumstances,
then the contract is an
one.” (Skelly
and of the.surrounding
implied
Corbin,
474],
in 1
Contracts
Bristol Sav. Bank
Still another cases arises from their inconsistency prior treatment of accumulated effort. To the extent that joint through had contributed the cases held that the property, partner partner funds obtains a share in the lack of proportionate acquisition, despite legal Vallera, 685; Vallera v. ( Cal.2d at standing relationship. supra, Weak, see Weak v. Yet courts have refused 632, 639.) such an interest based the contribution of services. recognize just As Justice Curtis out it “Unless can be that a woman’s points argued *18 cook, valueless, services as and homemaker are it would housekeeper, if, seem when she contributes to the logical of money purchase her interest will be then when she contributes her property, protected, home, services in the her interest accumulated should be property Vallera, (Vallera 681, 21 Cal.2d protected.” 686-687 (dis. supra, opn.); Bruch, cit., see 101, 110-114; Article, L.Q. op. Illicit supra, Family Cohabitation: The the Vallera and Keene Cases on the Impact Rights of of the Meretricious 354, 6 U.C. 369-370; Davis L.Rev. Spouse 635, Comment 48 Wash.L.Rev. 1973, Thus as of the time of the of In re filing Cary, Marriage supra, of the cases held that a nonmarital apparently partner
who rendered services in the absence of contract could assert no express the The facts of right property acquired during relationship. Cary demonstrated the unfairness that rule. unmarried,
Janet and Paul had lived for more than Cary together, held themselves out to friends and as husband eight years. They family wife, children, reared four a home and other purchased property, credit, returns, obtained filed income tax and otherwise conducted joint themselves as were home, married. Paul worked outside the though they and Janet cared for the house and children. generally
In 1971 Paul for a petitioned “nullity marriage.”17 Following on that the trial court awarded Janet half the hearing petition, property all acquired such during was relationship, although traceable to Paul’s The Court of affirmed the award. earnings. Appeal 17The Court of in In re does not Appeal opinion Cary, Marriage explain why court, however, Paul filed his action as a Cary Briefs filed with this petition nullity. that Paul suggest have been may to assert as a In seeking rights putative spouse. decisions which had dénied relief to the home-
Reviewing prior the Court reasoned those decisions rested making partner, Appeal of cohabitation without upon punishing persons policy guilty Act, observed, Law the court aimed eliminate marriage. Family fault or as a But once basis for marital fault or guilt dividing property. excluded, reasoned, the court guilt nothing distinguishes of a nonmarital from of a those Since rights “spouse” putative spouse. “ ” is entitled marital Code, to half (Civ. latter ‘quasi property’ that, § the Court of concluded 4452), to the effect Appeal giving policy Act, Law a nonmarital cohabitator should also be entitled to half the accumulated an “actual during family relationship.” at (34 353.)18 case, hand, neither other claims the
present status of an actual or party putative Under such circumstances an action to “the spouse. instant adjudge case marriage” be would and could not serve as a device nullity pointless contract and adjudicate from the property rights arising parties’ relationship. Accordingly, plaintiff chose here to assert her means an rights civil action. correctly ordinary 18The court also its Cary based decision of Civil Code analysis section which specifies of a property rights putative Section 4452 states that spouse. if the “court finds that either or both party believed in faith that the good marriage was valid, the court should declare such party have the of a status putative and, divide, . . . shall spouse, in accordance with Section that property acquired *19 the . . union . .” Since during section 4800 an division of requires equal community section 4452 to property, Cary interpreted an the require division of equal of a property so as putative marriage, one believed in long spouse faith that the good was marriage concluded, valid. Thus under section the Cary (the “guilty who spouse” spouse invalid) knows the is has the same marriage to half the as does the right property “innocent” spouse. then reasoned that if the to a is Cary “guilty” entitled spouse putative marriage to one-half the marital the in a nonmarital property, “guilty” partner should Otherwise, stated, also receive one-half of the the court “We should be property. obliged to a legislative a intent that who deceit presume person, by leads another believe a them, valid exists between shall be the marriage guaranteed half of legally property they all, most, even have though resulted from the of the acquire may blameless earnings At the same time we must infer an inconsistent intent that partner. two legislative who, other, with each enter an persons candidly unmarried upon family relationship, shall be denied aid whatever in any judicial the assertion of otherwise valid property (34 at rights.” Cal.App.3d Note, cit., This reasoning (See has been criticized commentators. Cary op. supra, 1226, 1234-1235; Comment, L.J. In re Hastings Marriage End the Carey [sic]: of of Putative-Meretricious Distinction in Spouse San L.Rev. Diego California 444-446.) The that commentators note Civil Code section 4455 that an provides “innocent” ato can recover from which party putative spousal support, they infer that the intended to Legislature the “innocent” give only to one-half spouse right under section 4452. quasi-marital property We need not now resolve this the dispute concerning section 4452. interpretation Even if correct is that a Cary holding “guilty” has one-half putative spouse right of the maritál it not does follow that a property, necessarily has an partner In a the identical will putative marriage economic affairs with right. arrange the that dissolution the will be divided If a property expectation equally. “guilty” districts, in other la Estate met with a mixed reception appellate Cary 758, the Fourth District with Atherley, Cal.App.3d agreed in an actual under the Law Act a nonmarital that Cary Family partner an division of the same right equal enjoys family relationship In Beckman v. as a Mayhew, supra, putative spouse.
however, that the the Third District Cary rejected ground Family law with Law Act was not intended to California change dealing nonmarital relationships.
If Law Act Cary interpreted holding Family division accumulated in nonmarital requires equal we with “actual then Beckman v. family relationships,” agree Mayhew the act. distends No Law Act addresses Cary Family language of nonmarital property rights partners, nothing legislative of the act that the considered that history suggests Legislature subject.19 The delineation of the of nonmarital before 1970 had rights decision; been fixed we see no reason believe that entirely by judicial that, Act, Law intended to Legislature, by enacting change state of affairs.
But we we share although reject reasoning Cary Atherley, that the courts perception Cary Atherley application former in the factual those cases would work an setting precedent unfair distribution of the accumulated Justice couple. 529, 535, Friedman in Beckman v. also Mayhew, supra, Keene; the continued of our decisions in Vallera and questioned viability commentators have the need to reconsider those argued precedents.20 *20 not, therefore, We should the of and reject authority Cary Atherley without also the deficiencies in the former law which led to examining those decisions. receives one-half of the
putative spouse
under section
no
of
property
expectation
the “innocent”
has been frustrated. In a nonmarital
on the other
spouse
relationship,
hand, the
or
determine
parties may
to order their economic
expressly
tacitly
manner,
in some other
and to
of such
community
regardless
impose
property principles
frustrate the
understanding may
parties’ expectations.
the extensive material available on the
of the
Law
19Despite
legislative history
Family
Act neither
nor
cites
reference which
that the
ever
Cary
any
plaintiff
suggests
Legislature
the
the
of
considered
issue of
nonmarital
our
rights
partners,
independent
property
such reference.
examination has uncovered no
Bruch,
cit.,
113; Article,
cit.,
L.Q.
20See
U.C.
op.
supra,
op.
supra,
354;
179, 197-201; Comment,
(1975) 6 Golden
Davis L.Rev.
Comment
Gate L.Rev.
op.
cit.,
Note,
cit.,
436;
1246.
12 San
L.Rev.
L.J.
Hastings
Diego
op.
supra,
supra,
The
reason
the
decisions
in an
result
unfair
why
principal
pre-Cary
distribution
inheres in the court’s refusal
to
a
property
permit
nonmarital
to assert
based
partner
rights
upon accepted principles
or
We
have examined the reasons advanced to
implied
equity.
relief,
this denial of
and find that none have merit.
justify
First, we note that
cases
relief do
not rest
refusal
denying
a
Indeed, to the extent
theory
upon any
“punishing”
“guilty” partner.
that denial of relief
one
it
rewards the
“punishes”
partner,
necessarily
other
him to retain a
amount of the
by permitting
disproportionate
thus cannot
division of
property. Concepts
“guilt”
justify
unequal
between two
“guilty”
equally
persons.21
Other
in the
fare
The
reasons advanced
decisions
no better.
principal
seems to be that
from the
considerations arising
argument
“[e]quitable
reasonable
of... benefits
status of
...
attending
expectation
Vallera,
are not
a nonmarital
(Vallera
relationship].”
present
[in
But,
21 Cal.2d at
a
although parties
have
cannot
based
relationship obviously
any expectations upon
married,
belief that
were
other
consider
they
expectations
equitable
ations remain. The
well
that
will be divided
parties may
expect
in
with
accord
own tacit
parties’
understanding
absence of such
will
courts
understanding
fairly apportion property
accumulated
effort. We need
mutual
not
treat nonmarital
through
as
married
in order to
putatively
persons
principles
apply
contract,
remedies;
or extend
we
need
treat them
implied
equitable
do
as we
other unmarried
any
persons.22
21Justice
of the
Finley
Washington
Court
“Under such circum
Supreme
explains:
stances
dissolution of a nonmarital
this court and the courts of
[the
other
relationship],
have,
effect,
said,
sometimes
‘We will wash
jurisdictions
our hands of such disputes.
devices,
should and
be left
must
to their own
where
find
just
they
me,
To
themselves.’
such
seem
pronouncements
overly fastidious and a bit fatuous. They
and,
are unrealistic
other
the fact that
among
things,
ignore
(but
an unannounced
nevertheless effective and
rule
binding)
of law
inherent
such
terminal
any
statements
court of law.
The unannounced but inherent rule is
that the
simply
party
title,
who has
or in some instances who is in
will
possession,
enjoy
rights
ownership
of the
concerned.
often
The rule
great
operates
advantage,
cunning
shrewd,
names,
and the
who wind
with
possession
title to it in their
up
property,
So,
at the end of
so-called meretricious
the courts
although
relationship.
proclaim
matters,
establishes,
will have
such
do with
they
nothing
proclamation
itself
*21
involved,
to the
of law
effective
rule
which tends to
binding
operate purely
or
accident
reason of the
one of the
just
perhaps by
cunning, anticipatory designs
689,
(West
(conc.
v.
would Cary equal pointed discourage marriage rule was force the be made pre-1970 greater point might to avoid to cause the calculated marriage income-producing partner retain the benefit of all of his or her accumulated (34 thus earnings.” at we the well-established Although recognize public to foster and the institution of (see marriage Deyoe policy promote Court 140 Cal. P. 28]), Superior perpetuation rules which result in an distribution of judicial inequitable accumulated is neither a nor an during relationship just effective out that way carrying policy.
In we believe that the of nonmarital relation- summary, prevalence them, in modem and the social marks this as ships society acceptance no a time when our courts should means the doctrine of the apply unlawfulness of the so-called meretricious to the instant relationship case. As we have nonenforceability explained, agreements for meretricious conduct rested the fact that providing expressly conduct, to and such as the word encompassed suggests, pertained To the nonmarital to such a today prostitution. equate is to do violence to an different matter wholly subject accepted practice.
We are without aware many live.together young couples solemnization in order to make sure that can of marriage, they later undertake This trial successfully marriage. period,23 preliminary serves as some assurance that the will not subse- marriage, aware, end dissolution to the harm of both We are quently parties. stated, we have of nonmarital in other pervasiveness relationships situations.
23Toffler, Books, 1971) 253. (Bantam Future Shock page
684
The mores of the have indeed so society changed radically regard cohabitation that we cannot a standard based on moral impose alleged that have been so so considerations abandoned apparently widely misunderstood, however, Lest we be we take occasion to this many. point of the institution out that the structure itself society largely depends upon we have said in this be taken to of should marriage, nothing opinion from that institution. The of the man and woman derogate joining is at once the most and individually socially productive one can in the course of a lifetime. enjoy fulfilling relationship conclude that the barriers that stand We way judicial may of of a based the fulfillment of the reasonable expectations policy to a nonmarital should be removed. As we have relationship parties the courts now hold that will be enforced explained, express agreements rest on an unlawful We add that unless meretricious consideration. they in the absence of an the courts look to a express agreement, may variety of other remedies in order to lawful protect parties’ expectations.24
The courts
into the conduct of the
to determine
may inquire
whether
that conduct demonstrates an
contract or
implied
implied
of
or
venture (see Estate
Thornton (1972)
partnership
joint
The remanded further judgment consistent with the views herein.27 proceedings expressed J., J., McComb, J., Mosk, J., Sullivan, Richardson, J., C. and Wright, concurred.
CLARK, J., Concurring Dissenting. The majorityopinion properly on the basis of either or in fact permit recovery express implied between These the issues parties. being presented, Here, resolution reversal of the should requires judgment. opinion stop.
This court should not to determine all attempt anticipated rights, duties and remedies within meretricious every relationship—particularly Rather, terms. these issues should be vague determined as complex each arises in a concrete case.
The indicate that a to a meretricious relation- majority broadly party recover on the basis of and in ship may equitable principles quantum However, meruit. fail to advise us of the circumstances majority limitations on or whether their numerous permitting recovery, recovery, remedies are cumulative or exclusive. under the Conceivably, majority recover half of the opinion party may property acquired during on the basis of recover a bonus relationship general equitable principles, based considerations, on and recover a second bonus specific equitable (cid:127) meruit. quantum raises but fails to answer general sweep majority opinion First, several because the excluded questions. Legislature specifically some to a meretricious from the division rule parties relationship equal of Civil Code section is this court now free to create an equal Second, division rule? termination of the is it relationship, the economic of lawful on equitable impose obligations spouses whether, 26We do not in the absence pass upon question of an express implied contractual to a nonmarital obligation, is entitled to party relationship support from the other after payments terminates. party 27We wish commend the amici for the briefs exceptional quality in this case. argument meretricious when the latter have may rejected matrimony Third, avoid such does not obligations? application equitable princi- examination of the conduct of the ples—necessitating parties—violate *24 Law Act of to eliminate the spirit designed bitterness and from the former fault acrimony resulting system Fourth, divorce? will not application equitable principles reimpose trial courts the burden of domestic unmanageable arbitrating Fifth, will not a meruit disputes? quantum system compensation services—discounted benefits meretricious received—place spouses a better Sixth, than lawful if a meruit position spouses? quantum system allowed, is to be does fairness not inclusion of all services and all require benefits of how difficult the evaluation? regardless
When the to a show meretricious or express in fact intend to create mutual implied they obligations, However, courts enforce the should absence agreement. we should and consider the ramifications before agreement, stop creating intent, economic which violate contravene the obligations may legislative intention of the undue burdens on our trial parties, surely generate courts. overreach, the a nunc tunc
By judicial majority perform pro marriage, it, dissolve and distribute its on terms never contemplated by case law the parties, Legislature.