'Contract Cohabitation': A Jurisprudential Perspective on Common Law Judging

A number of courts have considered the question of what rights and duties, if any, an unmarried person has when, after living with another for a period of time, the relationship ceases and the couple separates. Some cases recognize certain right and duties based on what can be called “contract cohabitation,” while others totally reject the enforcement of agreements based on such “meretricious relationships.” This Article focuses on the jurisprudential dimensions raised by “contract cohabitation” cases. These cases provide a unique and useful framework for considering such traditional jurisprudential issues as the relationship between law and morality and the proper role of courts in a democratic society. Addressing such broad issues within the context of detailed factual settings has several benefits. This approach also has its shortcomings, however. Doctrinal issues can become so complex and involved that the philosophical perspective is lost. On the other hand, abstractions often appear to be irrelevant, or at best, boring.Because of these problems, this Article adopts a somewhat unusual methodology. First, a hypothetical problem with many of the complexities of real life will be developed. Second, a series of judicial decisions by courts in a fictional state will be presented. These hypothetical opinions parallel many actual decisions in this area, but are used in lieu of the latter to simplify and sharpen analysis. Finally, several of the central jurisprudential aspects of the case will be developed explicitly by commenting on the way in which each judge’s philosophical perspective is reflected in his opinion.