Today, Law.com reports on a New Jersey appellate court’s decision in Bayne v. Johnson, which involved a palimony claim by a woman who had been a party in a bizarre triangular relationship for almost twenty years. According to the article, Fiona Bayne, then a 25-year-old flight attendant with British Airways, began a romance with 41-year-old Earl Johnson in 1981. Earl Johnson was married at that time to Carolyn Johnson, a wealthy 61-year-old woman with a string of six failed marriages. (Earl had three previous marriages when he married Carolyn.) The marriage was reportedly one of convenience entered into by Carolyn in 1978 so that her three estranged children would not be able to take control of her financial affairs. As the beneficiary of a trust valued at $11 million, Carolyn had plenty to lose financially if her children had her declared incompetent and took over control of her money as she feared. Although the couple reportedly agreed to pursue separate lives, Carolyn supported Earl in a lavish lifestyle through the years.
Bayne, who was living in an apartment in the Bahamas provided by Earl (and paid for with his wife’s money), did not know about Earl’s marriage for the first few years of the relationship. Once she found out, however, she remained in the relationship. Bayne, Earl, and Carolyn moved to various locations to pursue Earl’s business ventures with Carolyn bankrolling both the business ventures and the lavish lifestyle enjoyed by the three.
Eventually, all three shared the same apartment, with Bayne and Earl sharing one bedroom while Carolyn had the other. Bayne moved out in 2000, returned to England in 2002, and sued Earl for palimony in 2004, claiming that Bayne had breached his promise to marry and to support her, and noting that she could not maintain her previous lifestyle on her own. A trial court award of $384,000 was overturned by the appellate court, which found that there was no express or implied promise of lifetime support. The opinion noted that palimony is “not recompense for years spent in a failed relationship” but is “the enforcement of a broken promise for future support.” The court was almost certainly persuaded partly by the fact that Earl had never had the independent ability to support Bayne or even himself in a lavish lifestyle, since he was always only spending Carolyn’s money. The opinion also noted that it was Bayne who left Earl and not the other way around.
Palimony cases have presented troubling legal issues since 1976, when the term was first coined in reference to Marvin v. Marvin, a California case widely known as the first to recognize the possibility of a support obligation owed after the end of a relationship by one member of a cohabiting couple to the other member. In the uproar over the creation of marriage-like protections for couples who have never been married, it is often forgotten that Lee Marvin never actually had to pay any palimony to his ex-live-in-girlfriend Michele, partly because on remand the trial court found no express or implied contract, no damage to Michele, and no unjust enrichment of Lee.
Since Marvin, various courts have struggled with the question of whether it is appropriate to protect the financially weaker party in a broken marriage-like relationship. Usually the claims are based in contract, and the couple’s behavior is used to support theories that there was an agreement, as well as to support a finding that each party supplied consideration. (An early barrier to these agreements was the assumption that the consideration was inherently sexual, which many courts believed amounted to enforcing a contract for prostitution. Since Marvin, courts have acknowledged that there are many other services inherent in intimate relationships that could serve as consideration.) A difficult threshold question has been whether a given couple’s relationship is enough like a marriage to even reach the question of whether the parties had an agreement that one would support the other after the end of the relationship. Last summer, another New Jersey case sent shock-waves through the profession when the court held in Devaney v. L’Esperance that cohabitation was not strictly necessary in order to have a successful palimony claim, thus setting New Jersey apart from every other state with respect to its palimony rules. The court maintained the rule that the relationship must be a “marital-type relationship,” however, and went on to hold that the plaintiff, Devaney, had not proven that she had had such a relationship. Perhaps the court was merely recognizing the growing numbers of commuting married couples or acknowledging the reality that there is no universal model for a “marriage-like relationship.” Nonetheless, palimony cases in general, and Devaney in particular, fueled concerns that soon every dating relationship would be fair game in a court case for support.
Getting back to Baynes and the Johnsons, the New Jersey court took an important step back from making every dating relationship the potential target of a palimony suit. By refusing to award damages for years wasted in a broken relationship or for lost opportunities or disappointed hopes, the court moved the inquiry back to where it belongs: the actual promises expressed by the parties or implied by their actions. Pursuing a long-term relationship with a man known to be married to another, not to mention a man known to be supported by his wife, hardly sustains a claim that Fiona Bayne and Earl Johnson had a contract that he would support her indefinitely at a standard of living that only his wife could afford. Palimony cases are meant to protect starry-eyed lovers from exploitation by partners who promise everything, but honor nothing. They are not meant to elevate every ill-advised affair to the social or legal status of marriage.