Married couples in the United States have an array of legal rights, protections, and obligations.1 Notably, extensive rules exist for handling property division at the dissolution of a marriage.2 Courts will look past which partner holds legal title to property and allow for equitable division between the spouses.3 This approach reflects a conception of marriage that understands the spouses’ relationship as something akin to a commercial partnership, wherein each partner adds economically to the enterprise as a whole, which is in turn greater than the sum of each individual contribution.4 It also explicitly appreciates the economic reality that a spouse who contributes domestic labor to the partnership makes an integral contribution to the development of the partners’ jointly produced property.5
The treatment of unmarried cohabitants stands in jarring contrast.6 Despite the growing prevalence and cultural acceptance of this form of household,7 and wide-ranging support for providing a more diverse menu of family-configuration choices beyond just marriage,8 legal protections for unmarried cohabitants are limited and largely stagnant.9 Unmarried cohabitants in the United States are generally considered “legal strangers,”10 meaning that any legal claims available to partners at the relationship’s dissolution must usually be the same as those that any stranger could bring.11 Those who add to the partnership by working in the home rather than in the labor market are left largely defenseless.12 In this way, the law is lagging changes in the way people are choosing to structure their family and intimate relationships, and consequently failing signally to protect the interests of millions of people.13 A more sedulous employment of restitution, in which the value of domestic labor is appreciated, offers some hope.
Careful consideration of this topic, and the development of appropriate legal responses, is of particular importance in light of the disadvantaged socioeconomic status of many unmarried cohabitants, as well as their sheer numbers. The number of U.S. households containing unmarried couples increased by over forty percent between 2000 and 2010.14 The increase was approximately one thousand percent between 1960 and 2000.15 As of 2010, the U.S. Census Bureau estimated that over fifteen million people lived together in an unmarried household;16 given the trends, that number is almost certainly higher today.17 And “persons with low income and economic status” are the most likely to cohabitate without marriage — indeed, “[a] cohabitation-type relationship is referred to as a ‘poor man’s marriage.’”18 Elderly and same-sex couples also commonly choose this living arrangement.19 Racial and ethnic disparities are stark.20
At the same time that the number of unmarried cohabitants has swelled, legal movements have risked further isolating these people by cementing the institutional role of marriage. The Supreme Court has now affirmed the right of same-sex couples to marry.21 Although the decision vindicated an important right of same-sex couples, it simultaneously emphasized, or perhaps overemphasized, the importance of marriage in the eyes of the law — indeed, the Court went so far as to say that, without marriage, one is “condemned to live in loneliness, excluded from one of civilization’s oldest institutions”22 — raising fears among some about the precarious legal position of nonmarital families.23 Lower courts have already begun to read Obergefell v. Hodges24 as stressing the importance of marriage in analyzing the rights of unmarried persons.25 Put differently: as an unintended consequence of judicial emphasis on the importance of marriage, Obergefell may actually serve to erode legal protections for cohabiting couples. If, as the case stresses, marriage is the “keystone of . . . social order,”26 we risk a diminution of judicial (and societal) regard for the interests of cohabitants. In that way, a milestone decision in advancing fundamental rights simultaneously nudged us toward an earlier world as regards cohabitants. At minimum, former cohabitant plaintiffs will find an obstacle in some of the Obergefell dicta.
For decades, scholars have argued over the economic rights of partners at the end of a cohabiting relationship.27 Some advocate a contract-based approach,28 others a status-based approach.29 On the judicial front, courts in nearly all states permit at least contract claims between former unmarried cohabitants.30 The Uniform Law Commission has recently commissioned a uniform law in an attempt to address this difficult issue more systematically across state legislatures.31
A related strand of scholarship has contended that unjust enrichment offers an appealing doctrinal supplement.32 In 2011, the Restatement (Third) of Restitution and Unjust Enrichment (Restatement (Third)) endorsed a version of this “modern view” that “a partner in a marriage-like relationship may recover in unjust enrichment from the one who left with jointly created assets.”33
But the Restatement (Third)’s description of jointly created assets explicitly excludes the value provided by traditional domestic labor.34 Accordingly, “unmarried cohabitors who contribute domestic services are entering into a much riskier venture than partners entering into marriages with similar divisions of labor.”35 Women disproportionately bear the responsibilities and costs of domestic labor and are more likely to work inside the home.36 Accounting for the disadvantaged socioeconomic status of unmarried cohabitants more broadly, this means that underprivileged women are most harmed by the Restatement (Third)’s approach.37
This Chapter argues that although unjust enrichment offers a suitable legal framework for vindicating unmarried intimate partners’ economic rights and preventing unjust enrichment while respecting individuals’ choices regarding family formation, it must accommodate the value from partners’ contributions of domestic labor to fulfill its promise. Currently, courts use two dueling approaches to resolve cases between former cohabitants: contract-based and status-based approaches. Section A reviews them. Section B argues for including the value of domestic services in the measure of a remedy in restitution. Section C adds some complications to the analysis and addresses key counterarguments, such as that domestic services are better understood as gifts (for which restitution would be unavailable). A brief conclusion follows.
A. Current Doctrine
An overview of the ways in which courts address the problem of untangling property rights at the dissolution of a nonmarital relationship is warranted. Although these approaches vary widely, they can be split broadly into two categories: contractual and status-based.
1. Contractual Approaches. — Contractual approaches start from the position that cohabitants, like all legal strangers, derive no baseline, default protections from their relationship but are nevertheless free to alter that default arrangement by contract.38 As with contracts outside of family law, agreements between cohabitants can generally be either written or oral.39 Written agreements between unmarried cohabitants, while enforceable in most jurisdictions,40 are rare.41 More typically, a plaintiff alleges that a former partner has breached an oral contract.42 Of course, as a threshold matter, proving to a court that an oral contract exists is often quite difficult.
(a) Description. — The leading early case establishing contract-based rights of recovery for unmarried domestic partners was Marvin v. Marvin.43 Prior to this case, courts, inspired in part by the background social mores of an earlier time, refused to enforce contracts between unmarried cohabitants on the theory that such agreements were void as against public policy because they involved entering into an agreement for illicit sexual relations.44 Marvin, recognizing and drawing on changes in social norms, broke significant new ground by holding that an express contract between cohabiting partners was enforceable.45 The resulting payments due to the former cohabitant are sometimes referred to colloquially as “palimony.”46 Importantly for present purposes, the Marvin court actually did not limit itself to express written and oral contracts.47 Rather, the decision went on to leave open the possibility of allowing recovery in restitution, including for domestic labor:
Our opinion does not preclude the evolution of additional equitable remedies to protect the expectations of the parties to a nonmarital relationship in cases in which existing remedies prove inadequate; the suitability of such remedies may be determined in later cases in light of the factual setting in which they arise.48
Thus, after Marvin, the stage was set for recovery for former unmarried cohabitants on contract-theory grounds. Moreover, there appeared to be momentum toward recognizing restitutionary claims, including those for domestic services.
In the intervening years since Marvin, courts and commentators have embraced this contract-based approach. In a recent article, Professor Courtney Joslin conducted a survey of the state-level post-Marvin landscape regarding the economic rights of former unmarried cohabitants.49 Joslin concluded that “Marvin remains the dominant approach to nonmarital property division claims in the United States,” although there is “some state-to-state variation in its application.”50 Regrettably, courts have been less willing to embrace Marvin’s vision of restitutionary claims for former unmarried cohabitants who provided domestic labor in the relationship.51
(b) Critique. — If a truly valid contract regarding the division of property exists between an unmarried couple, a respect for individual autonomy and general principles of contract law necessitate state enforcement. But the law falls short to the extent that it makes the lack of a contract dispositive. The nonexistence of a contract does not bar a claim in unjust enrichment.52 And “because ‘couples do not in fact think of their relationship in contract terms,’ a rule that ‘directs courts to decide their disputes by looking for a contract is unlikely to find one.’”53 One would expect a contract to exist where the benefits of the contract outweigh its costs.54 Given the observed lack of contracting between unmarried cohabitants,55 despite a lack of the traditional barriers to contracting,56 it would appear that most unmarried cohabitants find the costs to the relationship of bargaining over such a contract are high, at least in comparison to the perceived benefits if the relationship dissolves (if they even think of contracting at all).57 The law should not make the bearing of these costs a prerequisite to legal protection.
Furthermore, contracts between cohabitants present many practical problems that ought to caution courts against unreflective enforcement. Even in the presence of a bargained-for exchange, problems of disparate bargaining power leave the result of the bargain vulnerable to manipulation by the more powerful partner.58 Thus, many “contracts” between cohabitants may be little more than expressions of the desires of that one partner.
In sum, a contract model often does not fit a personal relationship with reciprocal feelings and obligations that evolve over time and were not, and likely could not have been, resolved in an arm’s-length negotiation at the outset.59
2. Status-Based Approaches. — Status-based approaches seek to protect individuals’ relationship choices by giving formal legal recognition to nonmarital families, even where there is no contract (marriage or otherwise).60 Some such approaches insist that the law should understand any marriage-like living arrangement — whether solemnized by marriage or not — as equivalent to marriage.61 Thus, the argument goes, if these relationships are equivalent to marriage, equivalent legal protections are owed.62 Other approaches prefer to distinguish a wider set of marriage-lite arrangements, where some (but not all) of the rights and obligations of marriage attach to certain relationships, depending on the degree of commitment or the similarity of the relationship to marriage.63
(a) Description. — Perhaps the most familiar of the status-based approaches, and certainly one with a long lineage, is the common law marriage. Common law marriage represents a legal recognition that if a couple has structured and carried out its relationship with the intent that it be a marriage, the lack of an officially sanctioned marriage will not cause the arrangement to be disregarded.64 Therefore, the use of a common law marriage approach to questions of property division employs a “status-based” analysis by grafting the hardwired default rules of marriage dissolution onto nonmarital living arrangements. But common law marriage has been legislatively abolished in all but a handful of jurisdictions in the United States.65 Concerns over fraud and over the potential for erosion of traditional marriage, along with a desire to constrain interracial marriage, were some of the precipitating factors in its decline.66 Although some scholars continue to favor common law marriage,67 it is more of an anachronism than a ready solution for contemporary cohabitants.
Arguments for a status-based regime were particularly salient prior to Obergefell.68 For decades, progressives had used a variety of legal means in an attempt to lift same-sex relationships up to the same level of recognition as that of “traditional” marriage.69 A consequence of this approach was that marriage was entrenched more deeply as the ideal to which courts assumed nontraditional families could and should aspire.70 Since the Court’s recognition of the right of same-sex couples to marry, there has been a reinvigorated focus on proposals designed to provide people with more options for legal arrangements that suit their particular choices regarding family formation.71 Indeed, some family law scholars have openly challenged more broadly the traditional understanding of the centrality of marriage as a social institution.72
(b) Critique. — A status-based approach falls short as a theoretical basis for resolving nonmarital property disputes. Just as unmarried parties, in reality, generally do not bargain for a discernible set of tailored contractual rules governing the division of property, so too in contemporary society, with no-fault divorce and marriage equality, contemporary cohabiting couples often (or at least sometimes) do not intend to enter a full-fledged legal marriage.73 A status-based approach by its nature creates an externally imposed rule set as to the division of property upon termination of the relationship. The external nature of the rule set, while to a degree simplifying the process and perhaps introducing an element of certainty as to outcome, is inherently formulaic and exogenous to the particular circumstance and intent (if any) of the parties to the relationship.74 Whether a “marriage-like” status, which attempts to graft marriage dissolution rules, or one of a series of potential “marriage-lite” statuses, any regime is bound to miss the mark in dealing with cases as unique and knotty as intimate partnership and family formation. Moreover, status-based approaches disrespect the freedom of the parties to craft arrangements of their own design. In its distinctiveness, each nonmarital family is ultimately unclassifiable. And bad default rules are particularly harmful in the family law setting.75 These issues present fundamental challenges for any status-based approach.
3. Restitution for Unjust Enrichment. — As discussed elsewhere in this Developments in the Law, the law of restitution is concerned with defendants who have been unjustly enriched (at the plaintiff’s expense).76 The central goal of restitution, therefore, is preventing the defendant’s unjust enrichment. Any remedy a court crafts in restitution focuses on restoring fairness and rebalancing such unjust enrichment rather than on redressing losses incurred by the plaintiff. In the words of the Restatement (Third):
Restitution is concerned with the receipt of benefits that yield a measurable increase in the recipient’s wealth. Subject to that limitation, the benefit that is the basis of a restitution claim may take any form, direct or indirect. It may consist of services as well as property. A saved expenditure or a discharged obligation is no less beneficial to the recipient than a direct transfer.77
(a) Description. — One of the overarching objectives of this Chapter is to locate with some precision restitution for unjust enrichment within the contemporary law of unmarried cohabitants. In the context of unmarried cohabitants, courts have used restitution for decades as a means by which to reapportion the value of assets that were created during and through the partnership that end up in the hands of only one partner.78 Former unmarried cohabitants are able to bring claims in restitution in many states,79 but courts almost invariably deny recovery based on the value of domestic labor,80 sometimes directly invoking the Restatement (Third).81 Instead, courts have traditionally focused on identifiable and substantial contributions to the acquisition, preservation, or enhancement of a specific asset owned by the defendant (categories that exclude domestic labor).82 The case law also displays a reluctance on the part of courts to extend restitutionary claims too generally, in part because of evidentiary problems and also for fear of interfering with private relationships by peering too closely into them.83
In the setting of former unmarried cohabitants, unjust enrichment is best understood as a complement to the contract-based approach, not as a replacement — a complement with significant implications for how courts should handle contractual claims. If a valid contract exists,84 it should be enforced. If such a contract is absent (as is most often the case), however, restitution is available to plaintiffs as a means of preventing the unjust enrichment of the defendant. Extending this line of reasoning, one sees that unjust enrichment is actually most directly in conflict with the various status-based approaches: neither unjust enrichment nor the status-based approaches attempts to topple or to supersede contract law, but each offers a different remedial mechanism in the absence of a valid contract.
Moreover, the availability of restitution ought to leave courts more willing to scrutinize and potentially refuse to enforce problematic contracts.85 Similarly, because unjust enrichment is an alternative to (not a replacement for) contract law, an approach that makes only contract claims86 available between former unmarried cohabitants — which is the method some states employ87 — is inapposite. Finally, unjust enrichment provides unmarried cohabitants background legal rights that can aid in providing parity between the parties in contractual bargaining.88
(b) Why Restitution? — Discerning the precise source of an obligation in unjust enrichment presents something of an “intractable question.”89 The Restatement (Third) suggests that one such source is a party’s “reasonable expectation”90 that “expenditures to maintain, improve, or add value to property” would lead to gaining rights to the property.91 By that reasoning, one could conceive of a former unmarried cohabitant’s claim in unjust enrichment as arising from contributions to the partnership that were made with an expectation of participation in the relationship’s future economic benefits. Thus, where instead only one partner retains the property from the relationship, that partner is unjustly enriched.92
The normative argument for using unjust enrichment as a backstop doctrinal safeguard starts from the position that the law should honor and further parties’ autonomous choices with respect to private and intimate relationships and support a broader set of choices in that regard.93 This goal is a direct corollary to the understanding that individuals are in the best position to make decisions regarding their lives. Restitution allows this freedom of choice without demanding in return the surrendering of all rights and protections. Moreover, it does not impose artificial formalities that are unlikely to be followed or out-of-the-box default rules that are unlikely to fit. Rather, it allows for a tailored solution in the event of dissolution, without requiring negotiation between the parties ahead of time. The parties lead; the law follows. Finally, because a restitutionary remedy looks to gains to defendants, not losses to plaintiffs, any remedy will be naturally scaled (albeit loosely) to the value of the couple’s assets.94
B. The Role of Restitution and Compensation for Domestic Labor
As discussed above, courts and commentators, even when exhibiting a willingness to work within the framework of restitution for unjust enrichment in settling claims between former unmarried cohabitants, generally see fit to limit its applicability to contributions deemed substantial.95 This section argues that such an approach hamstrings courts from properly considering the totality of the arrangements of the parties and risks substantial injustice among the most vulnerable cohabiting partners. More specifically, the value of domestic labor contributions should be included in a full calculation of any restitution-based nonmarital property division.
1. The Current Status of Restitution for Domestic Services. — Cressy v. Proctor96 is illustrative of the current approach’s shortcomings. In that case, Ronald Cressy brought an action against his former romantic partner, Kevin Proctor.97 Cressy had worked substantial hours without compensation at the advertising business that Proctor owned and operated.98 In addition, “Cressy contributed to the household and farm chores.”99 In considering the defendant’s motion for summary judgment,100 the court addressed several claims, including in contract, before turning to Cressy’s unjust enrichment claim.101 Revealingly, the United States District Court for the District of Vermont allowed Cressy’s claim of unjust enrichment with respect to work performed at the business to proceed, but dismissed his claim related to work performed at the family home.102 The court stated that “it is undisputed that Cressy contributed to household maintenance at [the couple’s home] — perhaps significantly — but he also received the benefits of these contributions, as he lived on the property.”103 Thus, the court concluded, without analyzing the particulars, that the benefit of living in the home compensated Cressy for his work therein. But it chose not to assume the same regarding the work performed outside the home. A principled reason for this distinction in treatment is difficult to deduce, and the court did not make clear its logic.
Although Cressy concerned a same-sex couple,104 it is commonly a woman in an opposite-sex relationship who brings these types of claims.105 On average, women are paid less in the labor market, and women disproportionately shoulder the responsibilities of domestic labor.106 The result is that women “tend to accumulate fewer financial assets in their names during nonmarital relationships, and they tend to contribute more of the services that are undervalued or devalued altogether under the current doctrine.”107
For many years, some commentators have argued that these services are already compensated as part of the natural give and take of a relationship.108 The woman did the work at home, but she also got a place to stay and three meals a day. Professor Hanoch Dagan, for example, argues forcefully that allowing for restitutionary claims between former unmarried cohabitants only for “extraordinary” contributions (which implicitly excludes domestic labor) protects against disrupting the natural give and take of private relationships and obviates the need for complex inquiries into donative intent and the quantification of domestic labor.109 He suggests that this distinction is a normatively appealing way to allow community reciprocity to flourish without state interference.110
Others see far more pernicious forces at play. Gendered notions of the role of women in relationships may lead courts to demean and devalue women’s contributions — often, even modern courts go so far as to refer to homemaking as “housewifely.”111 In a recent article, Professor Albertina Antognini argues that the law’s reluctance to compensate for domestic labor echoes back, and indeed can be traced back, to historical notions of coverture, whereby a husband owned all marital property, including his wife’s labor.112 She asserts that this archaic principle has carried forward to inform the current “state of affairs” in nonmarital cases:
[C]ourts insulate the sphere of the home from that of the market, declare that the labor done within the former has no monetary value, and prevent the homemaker from accessing any property as a result. . . . [S]ervices that take on the form of homemaking or childrearing — duties undertaken by the wife under coverture — do not lead to any attendant property rights.113
Zooming out from the scholarly debate briefly, it is worth underscoring that the problems that the current doctrine presents are not of merely academic concern. Under the present model, partners who do not labor outside the home are systematically made vulnerable, left without remedy or redress. Therefore, the onus should rightly be on the defenders of the status quo to explain why its persistent application is tolerable. Nevertheless, this Chapter will now turn to explaining how expanding restitution to compensate former unmarried cohabitants for the domestic labor they provided to the relationship would be a clear step in the right direction.
2. Including the Value of Domestic Labor in Unjust Enrichment. — This Chapter’s proposed doctrinal refinement can be stated simply: in considering restitutionary claims from former unmarried cohabitants, courts should include the value of domestic labor in determining if and to what degree one partner has been unjustly enriched. This section provides an example illustrating how this would operate in practice.
Return to the case of Cressy. There, the court refused to consider the value of domestic labor, but it simultaneously allowed a claim based on the value of market labor.114 The court presumed that the domestic labor was functionally compensated (by the right to live in the other partner’s house) but that the value of the market labor may not have been.115 For present purposes, let us assume that there were only three sources of value relevant to the case: the domestic labor, the market labor, and residing in the home. Under a more complete approach, the court would do an accounting of each of the three pieces. Algebraically, the formula would be ValueDomestic Labor + ValueMarket Labor – ValueResiding in the Home = Amount Due in Restitution.116
Although admittedly stylized, this result is generalizable.Intriguingly, the formula shows that a partner need not contribute exclusively domestic labor for that labor to be considered in crafting a remedy in restitution. Thus, even if both partners worked outside the home, one partner could still raise a claim in restitution resulting from domestic labor contributions.117
This approach appears unlikely to lead to the problems imagined by critics, such as that it will require courts to value what cannot be valued; that it will force a determination of donative intent; and that it will mean that courts will improperly interfere with informal community reciprocity.118 The method may indeed involve valuing at least two additional items in the typical case: the value of the domestic labor and the value of residing in the home. But in the context of a messy, multifaceted case that involves valuing potentially dozens of forms of property and labor, two additional valuations should not prove overly onerous. As will be discussed below, there are methods for valuing domestic labor — indeed, courts must handle a form of these issues in the context of divorce.119 Furthermore, courts could apply a rebuttable presumption that the domestic services were not given as a gift. Such a presumption would be appropriate in a reciprocal domestic relationship120 and would eliminate the need to inquire into donative intent in many, if not most, cases. Finally, even if one has concerns about courts peering too deeply into private personal arrangements and disrupting informal social institutions, it is not clear why domestic labor offers an appropriate line at which to end the inquiry. Private law, by its essential nature, must look into personal arrangements to some degree in order to do justice121 — any attendant disruption must be balanced against the benefits of the inquiry. Where, as here, those benefits are manifest, the law need not hesitate.
3. Valuation of Domestic Services. — To be sure, valuation of the enrichment from domestic services would vary across each unique cohabitation arrangement and would of necessity involve a series of idiosyncratic assessments. Nevertheless, there are several general methods that courts could look to employ.
As shown above, in the prototypical case, the revised remedy calculation could require courts to value two additional items that they would not value under the current doctrine: domestic labor and residing rent-free in the home.122 The former would add to the amount of recovery in restitution; the latter would subtract. Looking at the two pieces in tandem might be easier in some cases, but for now let us analyze each in turn.
Valuing domestic labor presents challenges, in part because there is no available market in which to observe prices.123 Furthermore, domestic labor has traditionally been devalued, both by those who do not pay for it and in the labor market.124 Nevertheless, other areas of the law, including tort law and divorce law, have come to recognize and to grapple with the pecuniary value of this labor.125 Similarly, economists of many stripes have been interested in the problem for some time.126
Take the example of asset division in the context of divorce. Consideration of domestic services in dividing marital assets has been standard practice for decades.127 Driven by the conception of the family as an economic partnership, divorce law promotes the equitable division, which some states presume to mean equal division, of all marital property.128 Accordingly, the homemaker is treated “as an ‘equal partner’ in a marriage.”129 Divorce law thus flips the valuation inquiry on its head: rather than bifurcating the partners and individually assessing each partner’s contribution, the law accepts the inadequacy of such an exercise and tries to apply a rubric more suited to the realities of family life.
A remedy in restitution, based on gains by the unjustly enriched partner,130 should not ignore these trends in divorce law. An immediately obvious benchmark might appear to be the cost that the defendant avoided by not having to hire someone to perform the homemaking services that the plaintiff provided.131 The Indiana court in Turner v. Freed132 — one of the rare cases (perhaps the only case) in which a plaintiff recovered the value of domestic labor in restitution — seemed to use such a method, although the trial court’s “specific finding about how it arrived at [the plaintiff’s] recovery”133 was somewhat obscure.134
Although such a method is not without merit and may be appropriate in certain settings, it could fail to capture the wide array of support services that a domestic partner provides, and it would ignore the devaluation of domestic services in the labor market. Partners who work in the home not only do valuable domestic labor, but also contribute indirectly to the career of the partner who participates in market labor. For instance, the unjustly enriched partner may have been free during the relationship to devote more time and energy to pursuing market labor opportunities, fostering business relationships, or pursuing education or training because of the burden eased by the other partner’s domestic labor.135 For the partner who labors at home, both forms of work (direct and indirect) are erased. And domestic services are further devalued through our narrow definitions of what constitutes “work.” Even if, say, cooking is considered “real” work (that is, work worthy of a wage), other work — including emotional support — that might be performed by domestic laborers, and contribute meaningfully to the partnership as a whole, is overlooked. Ultimately, looking to market prices fails for the same reason that the contract-based approach is incomplete: it attempts to impose the rules of arm’s-length transactions in an altogether different setting. Moreover, although avoided cost can at times be an appropriate benchmark from which to craft a remedy in restitution,136 in this setting looking to but-for cost of labor fails to undo the defendant’s unjust enrichment. Stretching an analogy, the partners baked a valuable pie together; it would be unjust for one partner to keep the whole pie, and paying the pie-less person the going rate for a baker’s time doesn’t disgorge the value of the pie from the other party.
For these reasons, a more appropriate remedy in restitution would value the contribution of the person working at home at something close to half of the property generated during the relationship. Just as in marriage and divorce, the family economic unit jointly created the wealth, and it is unjust for it all to remain with only one partner.
Courts may also need to estimate the value of residing at the home. Here, as before, we look to the gain appreciated by the stay-at-home partner, not the loss experienced by the homeowner. Two complications immediately arise. First, there is perhaps an enrichment, but is it unjust (or unjustified)? That is not clear. All of the relevant analysis outlined above would need to be revisited and applied anew: Was this a gratuitous transfer? And if not, what exactly was the frustrated expectation of the defendant (that is, what did he expect, but not receive, in return)? Why didn’t the parties contract, particularly given the prevalence of roommate and subletting agreements?
Second, even if there is unjust enrichment to which the doctrine of restitution is relevant, the gain to the partner working at home would be expected to be minimal given that the partner could likely (at least in many cases) have found low-cost living at a different residence. In fact, given this likelihood, courts may be better off dismissing this inquiry altogether, perhaps preferring a rebuttable presumption that the defendant’s offer to stay in his home was a gift to the plaintiff — similar to the current presumption for domestic services, but (1) rebuttable and (2) justified by the circumstances of the typical case. Such an approach would also have the advantage of judicial economy.
C. Complications and Counterarguments
Numerous commentators, and even the Restatement (Third), have posited limitations and objections to the full-blooded deployment of restitution for unjust enrichment in the nonmarital cohabitant context.137 Although a full treatment of these various points would necessarily be the subject of a more in-depth discussion, a brief treatment is in order.
1. Gifts. — Restitution is not and should not be available to undo a valid, freely offered gift.138 Gifts are an integral part of a property-based liberal order.139 The law must honor transfers that are truly the product of full donative intent.
But family living arrangements constitute much more than a series of gifts. In the setting of relationships between cohabitants, married or unmarried, the division of labor and responsibilities is not intended as, and does not constitute, a reciprocal gift between the partners. Rather, it is based on household needs and requirements, economic and otherwise.
Even if, under the circumstances of a particular cohabitation arrangement, the provision of certain goods or services were made with the requisite donative intent, further inquiry is necessary. In many instances, a gift is not just a gift. Gifts made in the face of duress, undue influence, or mistake are not honored, for good, autonomy-enhancing reasons.140 Many nonmarital cohabitation living arrangements have all the warning signs of duress and undue influence — from partnerships involving domestic violence to more subtle inequalities of bargaining power.141 Even in the absence of duress, there may be mistake — many cohabiting partners mistakenly believe that they are in common law marriages.142 Finally, as the Restatement (Third) notes, gifts from unmarried cohabitants “may be made in the expectation that the donor will share . . . in the resulting benefits.”143 In other words, they are conditional gifts, conditioned on sharing in the future fruits of the relationship.
It seems reasonable to infer that transfers of resources between unmarried cohabitants are generally not gifts. Yet courts tend to take a different, indeed opposite, view. They often presume that exchanges between unmarried cohabitants are gifts.144 In fact, that presumption can be conclusive.145 In this way, misconceptions about gift-giving in the context of unmarried cohabitants, coupled with a rigid approach to restitutionary claims, leads to an antimajoritarian presumption that is sometimes nonrebuttable. And, of course, the predictable effect of all this is disproportionate harm to women.146
2. Availability of Contract Alternative. — In commercial and other nonmarital contexts, restitution is normally unavailable if the parties had an opportunity to negotiate and enter into a contract for payment.147 The question arises, therefore: Why shouldn’t the same prerequisite apply in the nonmarital cohabitant context? As noted above, however, family relationships are not bargained-for exchanges. Even in the context of formal marriages, only a small minority of parties choose to enter into prenuptial agreements.148
To interpose a requirement of bargaining as the sine qua non for granting restitution exalts formalism and wrongly shoehorns commercial requirements into an utterly dissimilar setting. Contracts present an imperfect (or at least incomplete) framework for determining the rights of former unmarried cohabitants; the availability of contract law should not and need not thwart the use of restitution in this setting.
3. Challenges in Adjudication. — The Restatement (Third) raises the specter that allowing unmarried cohabitants to bring claims in restitution may yield piecemeal and uncertain results “[b]ecause a conclusion about unjust enrichment is potentially influenced by all of the circumstances both of the parties’ cohabitation and of its termination, [and therefore] outcomes cannot be safely predicted apart from the facts of a particular case.”149 Although one could make an analogous statement in connection with the adjudication of any dispute, it surely need not preclude using restitution in the context of unmarried cohabitants. The reality that a factual record of the economic relations of the parties would be a prerequisite to the development of a remedy in restitution does not mean that such a remedy should not be fashioned. Courts exist to establish factual records and do justice; administrative challenges should not act as a definitive bar to their doing so. Furthermore, such determinations are a staple of property division in divorce;150 the tools exist in the judicial workshop and should be put to work on this job. Finally, much of the division could likely be dealt with through informal property settlements outside the courts, reducing the need for judicial resources. But this informal bargaining is possible only if former unmarried cohabitants ultimately have a background right. Absent such a right, they are left without any bargaining chips.
4. Risk of Harm to People from Unprivileged Socioeconomic Backgrounds. — A subtle yet important concern relates to potential harms to disadvantaged defendants. If courts start allowing claims in restitution for domestic labor, might we unwittingly end up in a position where defendants, themselves disproportionately marginalized, end up bearing inordinate debts? A valuation approach that looks to then-existing assets at the time of the dissolution could mitigate this problem. By dividing only what assets are available, defendants will escape undue liabilities.151
A hypothetical may help clarify this point. Imagine that partners A and B end their ten-year relationship, during which A worked at home while B earned a modest salary. At the end of the relationship, the two parties have accumulated $1000 in assets, all of which B holds. The worry would be that B (who has limited means) could end up owing A significantly more than $1000, perpetuating, and in fact exacerbating, B’s economic disadvantages. An approach to damages that looks to undo unjust enrichment by dividing wealth that exists at the end of the relationship, however, would result in at most a $1000 payment from B to A.
Of course, this also means that A may not receive full compensation for prior services rendered — there exists an unavoidable tradeoff between not overburdening B and fully compensating A.152 And because unmarried cohabiting relationships are common among members of disadvantaged socioeconomic classes,153 there will be many occasions where there simply are not enough, or any, assets to divide. In such a situation, the domestic services of one partner (A) would have still led to unjust enrichment of the other partner (B), but that partner may have nothing with which to repay the other. Zero divided by two is still zero. It is worth acknowledging forthrightly that this result is a limitation of this Chapter’s proposal.
Conclusion
Private law is tasked with the vital, and frequently difficult, responsibility of providing background legal structures that enable individuals to carry out their lives as they choose.154 Currently, the law has failed on this front when it comes to former unmarried cohabitants. In the process, it has left potentially millions of individuals without necessary protections. Restoring a more robust doctrine of unjust enrichment offers hope. But the doctrine cannot meet its promise if courts stop short of doing justice. Courts must be willing to do the work of ascertaining the enrichment generated from domestic labor contributed to a partnership. As our society has evolved, unmarried cohabitation has largely lost its stigma. But other biases remain — and they leave us inattentive to the needs of many marginalized members of society. Fortunately for former unmarried cohabitants, a doctrinal solution exists to prevent unjust enrichment. All that remains is for courts across the country to recognize that it is available and to wield it appropriately.