Law and Social Change: Why the Law Often Lags Behind Society
From Marriage to Live-In Relationships: A New Social Reality
Alimony and Its Limits Under Traditional Legal Frameworks
Hardship Faced by Women in Live-In Relationships
Judicial Creativity in Action: Birth of the Concept of Palimony
Implied Contracts: How Courts Bridged the Legal Gap
Divergent Judicial Views on Palimony in the United States
Introducing Palimony in India: The Supreme Court’s Experiment
An Unsettled Law: The Future of Palimony Across Jurisdictions
An insightful legal essay by Justice Markandey Katju on palimony, live-in relationships, implied contracts, and judicial creativity in India and the West.
The concept of palimony: an example of judicial creativity
By Justice Markandey Katju
It is said that the law usually trails behind social development. This is because while society is constantly changing and moving forward ( because of new scientific inventions and discoveries, which inevitably cause changes in society and social relations ), the law usually takes some time before recognizing these changes and changing accordingly.
A good example of this is the creation by courts of the concept of palimony.
In most countries, a husband has to grant maintenance, called alimony, to his wife ( i.e. a woman he has legally married ) on getting divorced or separated from her.
In many countries, particularly in Western countries, a phenomenon of live-in relationship arose, where a man and woman lived together without getting married. The question arose whether the woman was entitled to maintenance in such cases if after living together for some time the couple separated ?
According to the established law, she was not so entitled, because alimony was only granted by courts to women who were legally married to the man from whom she was claiming maintenance.
This caused hardship to many women, e.g. to those who had given up their careers to start living with a man ( without marrying him ) and become a homemaker, and/or helping him in his career. Live-in relationships had become widespread in Western countries, e.g. in America. On being separated from the man, she may find it difficult to survive.
Hence, there was a crying need for granting such women maintenance.
Now the law is made by the legislature, not judges. Judges are only supposed to interpret and enforce the law made by the legislature. But the legislature had not made any law for granting maintenance in such situations.
This is where some courts, using their judicial creativity, stepped in, by creating the concept of palimony, i.e. granting maintenance to the 'pal' i.e. a woman who had separated from a man with whom she had been in a live-in relationship.
But how could they validly do this ? After all, courts are only supposed to enforce the statute ( i.e. the law made by the legislature ) or contracts. There was no statute, and usually no written contract between the two in a live-in relationship, that the man would have to give maintenance to the woman on separation.
Some courts got over this hurdle by creating the concept of implied contract. They held that if the man and woman had lived together ( without getting married ) for a sufficiently long time, it could be presumed by their conduct that the two had entered into an implied contract that on separation the man would have to give maintenance to the woman.
There are widely divergent views of the Courts in the U.S.A. regarding palimony. Courts in conservative states like Georgia and Tennessee expressly refuse to recognize palimony agreements, express or implied, while courts in many liberal states like California have often taken a different view.. Written palimony contracts are still rare. However, even when there is no explicit written or oral contract some US Courts have held that the action of the parties by living together for long periods make it appear that a constructive or implied contract exists for the grant of palimony
As a judge of the Indian Supreme Court I have tried to introduce the concept of palimony in India in the judgment below :
However, as yet the law of palimony is still in an unsettled state everywhere. It will be interesting to see how the law develops on this issue
(Justice Markandey Katju is a former Judge of the Supreme Court of India, and former Chairman of the Press Council of India. The views expressed are his own.)
