137 Wis. 2d 506, 405 N.W.2d 303 (1987)
Sue Ann Evans Watts commenced this action in 1982 against James Watts in the circuit court for Dane County.1 The amended complaint alleged that the parties met in 1967 when she was 19, living with her parents, and working full time as a nurse’s aide.2 Shortly after they met, the defendant persuaded her to move into an apartment he paid for and to quit her job, indicating he would provide for her.3
Early in 1969 the parties began living together in a marriage-like relationship, holding themselves out to the public as husband and wife.4 The plaintiff assumed the defendant’s surname.5 She gave birth to two children who also received his surname.6 The parties filed joint income tax returns and maintained joint bank accounts asserting that they were husband and wife.7 The defendant insured the plaintiff as his wife on his medical insurance policy.8 He also took out a life insurance policy on her as his wife, naming himself as the beneficiary.9 The parties purchased real and personal property as husband and wife.10 The plaintiff executed documents and obligated herself on promissory notes to lending institutions as the defendant’s wife.11
During their relationship, the plaintiff contributed childcare and homemaking services, including cleaning, cooking, laundering, shopping, running errands, and maintaining the grounds surrounding the parties’ home.12 She served as hostess for the defendant for social and business-related events.13 The amended complaint further asserts that periodically, between 1969 and 1975, the plaintiff cooked and cleaned for the defendant and his employees while his business, a landscaping service, was building and landscaping a golf course.14 From 1973 to 1976, the plaintiff worked 20-25 hours per week at the defendant’s office, performing duties as a receptionist, typist, and assistant bookkeeper.15 From 1976 to 1981, the plaintiff worked 40-60 hours per week at a business she started with the defendant’s sister-in-law, then continued and managed herself after the dissolution of that partnership.16
The plaintiff further alleges that in 1981 the defendant made their relationship so intolerable that she was forced to move from their home and their relationship was irretrievably broken.17 Subsequently, the defendant barred the plaintiff from returning to her business.18 The plaintiff alleges that during the parties’ relationship, and because of her domestic and business contributions, the business and personal wealth of the couple increased.19 Furthermore, the plaintiff alleges that she never received any compensation for these contributions to the relationship.20 The defendant indicated to the plaintiff both orally and through his conduct that he considered her to be his wife and that she would share equally in the increased wealth.21
The plaintiff asserts that since the breakdown of the relationship, the defendant has refused to share equally with her the wealth accumulated through their joint efforts.22 He has also refused to compensate her in any way for her contributions to the relationship.23 The circuit court dismissed the amended complaint, pursuant to sec. 802.06(2)(f), Stats. 1985-86, for failure to state a claim upon which relief may be granted.24 This court took jurisdiction of the appeal upon certification by the court of appeals under sec. (Rule) 809.61, Stats. 1985-86.25
Whether sec. 767.255, Stats. 1985-86, applies to authorize property division between unmarried cohabitants?26
The purpose of statutory construction is to ascertain the intent of the legislature and give effect to that intent.27 If the language of the statute is unclear, the court will endeavor to discover the legislature’s intent as disclosed by the scope, history, context, subject matter and purpose of the statute.28 The unambiguous language of sec. 767.255 and the criteria for property division listed in sec. 767.255 plainly contemplate that the parties who are governed by that section are or have been married.29 The Family Code emphasizes marriage as the foundation of family and of society.30
No. The criteria in sec. 767.255 refer to marriage, which these facts do not satisfy because the parties never entered into a legal marriage.31 The legislature's sole purpose was to promote an equitable and reasonable adjudication of the economic and custodial issues involved in marriage relationships.32 The Family Code as a whole emphasizes marriage as the foundation of family and society.33 The plaintiff and defendant were not married under the statutory requirements.34
The plaintiff has not stated a claim for property division under sec. 767.255, Stats. 1985-86.35
Whether the doctrine of marriage by estoppel prevents the defendant from asserting the lack of a legal marriage as a defense to a claim under sec. 767.255?36
The doctrine of marriage by estoppel should not be applied in this case primarily because the legislature did not intend sec. 767.255 to govern property division between unmarried cohabitants.37 The parties’ conduct should not place them within the ambit of a statute which the legislature did not intend to govern them.38
No. The parties never entered a legal marriage yet held themselves out as husband and wife through joint tax returns and other documents.39 Because the statute itself does not extend to unmarried cohabitants, estoppel cannot bring the parties within its scope.40 The conduct of the parties cannot override the legislative intent expressed in the Family Code.41
The doctrine of marriage by estoppel does not prevent the defendant from asserting the lack of a legal marriage as a defense to a claim under sec. 767.255.42
Whether the plaintiff has stated a claim for damages based on breach of an express or implied-in-fact contract to share property accumulated during the relationship?43
A contract will not be enforced if it violates public policy.44 A declaration that the contract is against public policy should be made only after a careful balancing, in the light of all the circumstances, of the interest in enforcing a particular promise against the policy against enforcement.45 Courts should be reluctant to frustrate a party’s reasonable expectations without a corresponding benefit to be gained in deterring misconduct or avoiding inappropriate use of the judicial system.46 Nonmarital cohabitation does not render every agreement between the cohabiting parties illegal.47 A bargain between two people is not illegal merely because there is an illicit relationship between the two.48 This is so long as the bargain is independent of the illicit relationship and the illicit relationship does not constitute any part of the consideration bargained for and is not a condition of the bargain.49
Yes. The plaintiff quit her job and abandoned her career training upon the defendant’s promise to take care of her.50 She performed extensive homemaking, childcare, and business services without compensation over twelve years.51 The defendant indicated orally and through his conduct that she would share equally in the increased wealth.52 These facts support an express or implied-in-fact contract independent of the parties’ sexual relationship, with separate consideration in the form of domestic and business contributions.53
The plaintiff has stated a claim for damages based on breach of an express or implied-in-fact contract to share property accumulated during the relationship.54
Whether the plaintiff has stated a claim for recovery based on unjust enrichment and imposition of a constructive trust?55
An action for recovery based upon unjust enrichment is grounded on the moral principle that one who has received a benefit has a duty to make restitution where retaining such a benefit would be unjust.56 In Wisconsin, an action for unjust enrichment, or quasi contract, is based upon proof of three elements: a benefit conferred on the defendant by the plaintiff, appreciation or knowledge by the defendant of the benefit, and acceptance or retention of the benefit by the defendant under circumstances making it inequitable for the defendant to retain the benefit.57 A constructive trust is an equitable device created by law to prevent unjust enrichment.58 To state a claim on the theory of constructive trust the complaint must state facts sufficient to show unjust enrichment and abuse of a confidential relationship or some other form of unconscionable conduct.59 The latter element can be inferred from allegations in the complaint which show, for example, a family relationship, a close personal relationship, or the parties’ mutual trust.60
Yes. The plaintiff contributed both property and services to the parties’ relationship.61 Because of these contributions the parties’ assets increased, but she was never compensated.62 The defendant, knowing that the plaintiff expected to share in the property accumulated, accepted the services rendered to him by the plaintiff and it would be unfair under the circumstances to allow him to retain everything while she receives nothing.63
These facts satisfy the three elements of unjust enrichment.64 The close personal relationship alleged also supports the additional showing needed for a constructive trust.65
The plaintiff has stated a claim for recovery based on unjust enrichment and imposition of a constructive trust.66
Whether the plaintiff has stated a claim for statutory or common-law partition of real and personal property accumulated during the relationship?67
Chapter 820 provides that when any of the owners of personal property in common shall desire to have a division and they are unable to agree upon the same an action may be commenced for that purpose.68 Chapter 842 provides that a person having an interest in real property jointly or in common with others may sue for judgment partitioning such interest unless an action for partition is prohibited elsewhere in the statutes.69 Partition applies generally to all disputes over property held by more than one party.70 The determination of the issues relating to the property of the parties to this action is to be made on the basis of those legal and equitable principles which would govern the rights to property between strangers.71
Yes. The plaintiff has alleged that she and the defendant were engaged in a joint venture or partnership, that they purchased real and personal property as husband and wife, and that they intended to share all the property acquired during their relationship.72 These allegations, together with other facts alleged in the plaintiff’s complaint and reasonable inferences therefrom, are sufficient under Wisconsin’s liberal notice pleading rule to state a claim for an accounting of the property acquired during the parties’ relationship and partition.73
The plaintiff has stated a claim for statutory or common-law partition of real and personal property accumulated during the relationship.74