The Statute of Frauds was first introduced into the legal system in 1677 when Parliament created the Act for the Prevention of Frauds and Perjuries. The act outlined those contracts that had to be in writing to be enforced by the courts.

One of those contracts was an agreement made in consideration of marriage. This did not include the marriage contract itself, but only those ancillary agreements to distribute property if the marriage broke up. Today, we call such contracts prenuptial agreements. The members of Parliament were quite progressive in adding "pre-nups" to the statute.

However, even with the benefit of their combined wisdom, they never foresaw the strange case of Wilcox v. Trautz . Carol Wilcox and John Trautz lived together as an unmarried couple for 25 years, beginning when they were both youngsters in their twenties. During those two and a half decades, Wilcox managed to contribute only $25 each week for household expenses. However, she also performed all the household duties, and she used her own money to buy food and clothing.

Unfortunately, all good things must come to an end, and so, when Trautz discovered that Wilcox had become involved in another relationship, he sought legal advice regarding his rights with respect to the assets acquired during their relationship.

At that point, the two parties negotiated, wrote, and signed an agreement providing, among other things that "each party's earnings and property is his or hers alone, and the other party shall have no interest in the property of the other."

The assets, all in Trautz's name, included a house, valued at $180,000; an amphibious airplane, valued at $55,000; various bank accounts totaling $1,300; individual retirement accounts; and a one-half share in some real estate in Maine, valued at $15,000. Wilcox had no assets other than a small bank account, the other onehalf share of the Maine real estate, household furniture, clothing, and jewelry.

Had the written contract been a genuine prenuptial agreement, it would have been fine. It did exactly what a "pre-nup" is supposed to do, that is, it explained the terms of the agreement in specific, understandable language. However, it was not really a pre-nup, and that single fact gave the court pause. As a result, after due deliberation, the judge ruled that the agreement could not be enforced.

In addition, the judge also decided that, to prevent unjust enrichment, Trautz would have to pay Wilcox damages amounting to approximately $30,000. Trautz appealed the decision. Read on to see what happened. (See Wilcox v. Trautz , 693 N.E.2d 141(Supreme Judicial Court of Massachusetts).)

Opening Case Questions
1. Can the court use the Statute of Frauds to decide this case? Explain.

2. Does the actual written agreement satisfy all the requirements of the Statute of Frauds? Explain.

3. Does public policy apply here? Explain. If public policy applies, what should the result be? Explain.

4. If the court follows a strict interpretation of the law here, it will have to dismiss the contract as unenforceable, not because it does not meet the Statute of Frauds, but because it encourages the cohabitation of unmarried couples. Does this principle make sense in the modern world or is it simply an outdated, old-fashioned notion that should not influence the court today? Explain.

5. Should the courts try to reshape social norms this way or should that job be left to the legislature? Explain.