Unmarried Couples and Unjust Enrichment: From Status to Contract and Back Again?

In recent years, litigation over property arrangements between unmarried cohabitants has posed some old questions in a new light and has yielded some new answers. One of the most intriguing of these questions is whether a cohabitant has a right, upon dissolution of the relationship, to remuneration for household services rendered during the relationship. A spouse who contributed household services in an actual marriage, of course, may upon divorce receive a share of the property acquired by the other spouse during the marriage or may receive a monetary award as compensation for the contributions made to the other during the marriage. These are established rights of the marital status.

Unmarried cohabitants, however, traditionally have had no such rights. The "status" of "concubinage" or meretricious cohabitation afforded neither party any recovery for services rendered to the other, unless the party seeking recovery was induced to provide services by a mistaken belief that the couple was validly married (the situation commonly referred to as "putative marriage") or by duress. Recovery has generally been denied under quasi-contract or constructive-trust theories, since courts have reasoned that the law will not aid a wrongdoer in an illicit relationship such as nonmarital cohabitation or that a donative intent motivated the services and thus justified the retention of any benefit deriving from them. Even when couples foresightedly dealt with the problem by an express contract, courts often found such contracts, which rested in part on an illegal consideration, unenforceable.

The "taint" of the meretricious association thwarted virtually all attempts to recover for services-sometimes even for nondomestic services.