(dissenting). I disagree with the majority’s conclusion that maintenance payments can be modified only on the basis of a change in the financial circumstances of the parties. The majority opinion opens the door to potential abuse by the recipient ex-spouse and departs from existing legislative command and judicial mandate. In order to safeguard against such abuse and conform to existing law, more than just the financial circumstances of the parties must be considered.
A number of statutes give guidance in this matter. Sec. 767.26 entitled, “Maintenance payments,” authorizes the court to grant maintenance for a limited or indefinite period of time and specifies ten factors to be considered. The tenth factor is applicable to this case. It provides that the court shall consider such other factors as the court may in each individual case determine to be relevant. In determining what may be relevant, I believe the declarations of intent set forth by the legislature are fundamental. Sec. 765.001, Stats., identifies Chapters 765 to 768 as “The Family Code.” Sec. 765.001 provides:
*201“765.001 Title, intent and construction of chs. 765 to 768. (1) Title. Chapters 765 to 768 may be cited as “The Family Code”.
“(2) Intent. It is the intent of chs. 765 to 768 to promote the stability and best interests of marriage and the family. Marriage is the institution that is the foundation of the family and of society. Its stability is basic to morality and civilization, and of vital interest to society and the state. The consequences of the marriage contract are more significant to society than those of other contracts, and the public interest must be taken into account always. The seriousness of marriage makes adequate premarital counseling and education for family living highly desirable and courses thereon are urged upon all persons contemplating marriage. The impairment or dissolution of the marriage relation generally results in injury to the public wholly apart from the effect upon the parties immediately concerned.
“(3) Construction. Chapters 765 to 768 shall be liberally construed to effect the objectives of sub. (2).”
Sec. 767.32(3), Stats., specifically provides that “[a]fter a final judgment requiring maintenance payments has been rendered and the payee has remarried, the court shall, on application of the payer with notice to the payee and upon proof of remarriage, vacate the order requiring such payments.”
Chapter 944, Stats., entitled, “Crimes Against Sexual Morality,” speaks to misconduct. Sec. 944.20(3), Stats., prohibits open cohabitation and association with a person known not to be a spouse under circumstances which imply sexual intercourse. Sec. 944.15, Stats., makes it a crime for a person to have sexual intercourse with a person who is not his or her spouse.
In Taake v. Taake, 70 Wis. 2d 115, 121, 233 N.W.2d 449 (1975), we addressed a situation similar to the Van Gorder problem. We said that a divorced woman owes no duty of sexual fidelity to a former husband. I agree. *202This court went on to say: “However, her cohabitation with another man can be acknowledged as a change of circumstances affecting her former husband’s responsibility to provide alimony for her support. The manner and extent of the cohabitation and circumstances should be considered in determining whether alimony payments are to be changed.” We noted that Mrs. Taake’s cohabitation was not an occasional indiscretion but a “continuous cohabitation with arrangements for joint support.” Id. at 122. We affirmed the order of the trial court terminating alimony, noting that the trial court did not abuse its discretion. We went on to say that, while it was proper to terminate alimony during the period of cohabitation, it may be appropriate for alimony to be reconsidered at a later time if Mrs. Taake discontinued her cohabitation. I read Taake to declare that it was proper for the trial court to terminate maintenance because of the recipient ex-spouse’s continuous cohabitation with another man. The dissent vigorously argued that financial need should be the controlling factor. The majority has now moved to the position taken by the dissenters in Taake.
The majority places an unreasonable and unjustified burden on the payor ex-spouse when a marriage is terminated. Under the majority’s reasoning, the simple act of marriage obligates Edwin Van Gorder to pay maintenance as long as Shirley Van Gorder’s financial circumstances remain unchanged. This obligation remains even though Melvin Brenner and Shirley Van Gorder, in violation of the laws and the stated intent of the legislature concerning marriage, live in a relationship closely approximating marriage. Under Taake, I believe the trial court properly excused Edwin Van Gorder from his obligation to pay maintenance while the illegal cohabitation continues. The Taake court properly concluded an ex-spouse should not be permitted to enjoy both the benefits *203of a de facto marriage relationship and continue to receive alimony.
The majority retreats from Taake, and this retreat is an affront to the clear intent of the applicable legislative declarations. It does a disservice to the institution of marriage and rewards illegal conduct.
This is a stronger case for terminating maintenance than was Taake. The parties presented the trial court with stipulated facts concerning the relationship which was acknowledged to be a sharing of bed and board by Brenner and Shirley Van Gorder. There was no suggestion of financial hardship for this couple because Brenner had a net income of $2,250 per month and Shirley Van Gorder had a net income of $300 every two weeks, plus dividend income. In Taake, however, the record revealed that Mrs. Taake had financial problems. She had sold the home she received in the divorce judgment and no longer received $550 support because the children had reached maturity. She also was experiencing emotional difficulties and was unable to work. Notwithstanding these considerations, this court affirmed the trial court’s termination of the $200 per month alimony. I believe these facts support my conclusion that our decision affirming the trial court’s termination of alimony in Taake was firmly rooted on the illicit cohabitation.
The majority retreats from the Taake decision and now condones illegal cohabitation by excluding the illegal cohabitation factor from consideration in the matter of maintenance. In limiting the considerations available to the trial court in this sensitive area, marriage and morality are the losers. When a marriage is terminated by divorce, maintenance may become an unending financial burden upon the former spouse because the payor’s financial ability to pay and financial need are the only factors to be considered by the trial court. It is in the best interest of society to encourage divorced parents to *204maintain an amicable relationship because, although the bonds of matrimony are terminated, the bond which binds them forever are the children of the marriage. Nothing will promote more bitterness than requiring a former spouse to pay maintenance to a recipient ex-spouse who is living in a de facto marriage arrangement with a new partner. This result frustrates both the statute which terminates maintenance upon remarriage and those statutes which favor marriage.
The institution of marriage has been presumed to be a commitment by each partner to the establishment of a unit of society known as a family. The intimacy of marriage sets it apart from every other relationship. Because marriage contemplates a permanent commitment between the partners, the law imposes certain rights and obligations upon each partner. If the marriage terminates, society recognizes that a financial obligation for maintenance might continue under the enumerated factors set forth in sec. 767.26, Stats. The maintenance obligation is based upon the fact that the marriage may have enhanced the earning capacity of one partner and inhibited the earning capacity of the other. Accordingly, the court is authorized to equitably apportion funds between the parties until the spouse receiving financial maintenance remarries or becomes financially independent. The beauty of marriage is tarnished if it is to be a financial trap. The majority opinion in this case discourages marriage. A first marriage will be avoided because of the possibility of permanent financial obligation for maintenance if the marriage fails. A second marriage will be avoided because it would terminate the maintenance awarded at the time of the termination of the first marriage.
The laws identified as “The Family Code” are intended to promote familial stability. I believe the majority opinion is inconsistent with the purposes of “The Fam*205ily Code,” ignores the authority granted to trial courts by sec. 767.26(10), Stats., overrules the Taake decision, and erodes the institution of marriage.
I am authorized to state that Justice Louis J. Ceci joins in this dissenting opinion.