Many clashes about law and public policy reflect not deep, principled divisions about moral values, but different ways of prioritizing two purposes of the law: its pedagogical function, which encourages people to do good and avoid evil, and its remedial function, which tries to clean up the mess when people fail to do so.
Watts v. Watts, a 1987 Wisconsin Supreme Court case I teach to my first-year law students, nicely illustrates this tension. Sue Ann and James Watts lived together for twelve years and had two children. Although Sue Ann took James’s last name and the two filed joint tax returns and maintained joint bank accounts, they never legally married. Yet he listed her as his wife on his medical- and life-insurance policies; and, in addition to her duties as a homemaker, she spent about twenty-five hours a week helping him get his landscaping business off the ground. The business flourished, and by the time the couple separated in December 1981, it was worth well over a million dollars.
Unfortunately for Sue Ann, most of the assets were in James’s name—and after the couple split up, he refused to share the wealth. So she sued him. Arguing that the two had established something “tantamount to a marital family except for a legal marriage,” she maintained she was entitled to the same division of property that would follow a legal divorce in Wisconsin: an equal portion of the assets accumulated during the relationship.
Needless to say, James rejected her claim. Because the two weren’t legally married, he argued, they couldn’t be divorced under the law. Emerging as a passionate defender of the institution of marriage, he maintained that granting Sue Ann’s request for division of property in accordance with Wisconsin’s marriage law would subvert the intention of the legislature. Furthermore-implying that his relationship with Sue Ann had in fact been immoral—he argued that for the court to award recovery to her under any other legal theory, such as contract or restitution, would violate public policy.
Well, all is fair in love and war, I suppose, but legal interpretation attempts to be dispassionate. Year after year, however, Watts v. Watts generates a lot of heat among my students. Those who embrace the pedagogical function of the law don’t want to award Sue Ann any money. In their view, when the legislature enacted marriage and divorce laws, it clearly signaled that legal marriage is preferable for couples, their children, and society at large. Making an example of Sue Ann Watts, however sad for her personally, might deter countless other women from cohabiting without a wedding ring—in the long run, a better outcome for society as a whole. And so we need to be cruel to be kind.
In contrast, students who favor law’s remedial function want to fix the damage created when the Wattses split up. To do that by denying Sue Ann her share of the couple’s assets, they believe, is deeply unfair. After all, James was no less guilty of flouting Wisconsin’s public policy on marriage than she was—so why should her missteps cost her everything, while his bring a huge windfall? Both parties voluntarily held themselves out as a legally married couple for many years; doing justice requires treating them as a legally divorced couple, even if they never did have a marriage certificate.
In its actual ruling, the Wisconsin Supreme Court attempted to split the difference, gesturing at both pedagogy and remedy. While the court did not allow recovery under the state’s marriage and divorce laws, it did allow Sue Ann to sue both for recovery under contract law (claiming she and James had an agreement to share property acquired in the relationship), and for restitution (claiming he needed to reimburse her for the services she rendered his business). Upon rehearing by the lower court, the jury awarded Sue Ann a sum nowhere near equal to half of James’s assets. Her years with him were acknowledged-but only in her function as housekeeper and bookkeeper, not as a life partner who provided love and support.
Clashes about what to do with the Wattses can be passionate. We can all agree that legal marriage, with its protections and guarantees, should be encouraged...and that James Watts ought not to benefit at Sue Ann’s expense. Reasonable people can differ about how the law ought to prioritize those insights. When courts try to reach a compromise between such contending views and interests, the result can be murky. Rather like marriage itself.