dissenting.
The private lives of divorced women are no business of the law. We have enough to do without inquiring into such matters. However, the economic needs of divorced women are the business of the law. We settled these points in Gayet v. Gayet, 92 N.J. 149, 456 A.2d 102 (1983).
I
Today, the Court turns back the clock on years of efforts to improve the economic and social status of divorced women. In a long series of cases, we had come to recognize that marriage is both an affair of the heart and a form of an economic partnership. See Pascale v. Pascale, 140 N.J. 583, 609, 660 A.2d 485 (1995) (maintenance and child support); Portner v. Portner, 93 N.J. 215, 219, 460 A.2d 115 (1983) (maintenance); Lynn v. Lynn, 91 N.J. 510, 516, 453 A.2d 539 (1982) (same); Mahoney v. Mahoney, 91 N.J. 488, 500, 453 A.2d 527 (1982) (same); Rothman v. Rothman, 65 N.J. 219, 229, 320 A.2d 496 (1974) (same). When the marriage partnership is over, we do the best that we can to recognize the economic needs of the partners. Often the woman has taken the subordinate economic role in the marital partnership, assuming child-rearing or other non-income-generating roles. Thus, as society is presently structured, the divorced woman will often have the greater economic need. That should not mean that a woman’s personal life after divorce should be a matter of judicial supervision.
The Court shows sensitivity toward the rights of women, noting that anti-cohabitation agreements “reflect the importance attached to individual autonomy and freedom, enabling parties to order their personal lives consistent with their post-marital responsibilities.” Ante at 193, 729 A.2d at 11 (citing Faherty v. Faherty, 97 N.J. 99, 107, 477 A.2d 1257 (1984) (addressing whether to enforce arbitration clause, not cohabitation clause)). The Court, however, equates personal autonomy for women with freedom of contract, thereby avoiding confrontation with the holding in Gayet, which *205sought to protect autonomy insofar as it relates to personal relationships. Although the Court has consistently required that divorce agreements be fair and equitable, and cites cases supporting that assertion, ante at 194, 729 A.2d at 11-12, in those cases the Court did not depart from the economic needs standard as it has done here. Ante at 197, 729 A.2d at 13.
When viewed through the Gaussian filter employed by the Court, the anti-cohabitation clause appears as a pleasant piece of bargaining between equals. Although the Court properly declines to presume that all women are passive players in this arena, it fails to afford proper weight to the uneven economic playing field upon which the contest takes place. Ante at 200-01, 729 A.2d at 15. A New York study of divorce found:
Women are at a particular economic disadvantage in divorce because they typically do not control family assets at the end of a marriage. A study that measured the economic consequences of divorce for women, by Saul Hoffman, Professor of Economics at the University of Delaware and Greg J. Duncan, University of 'Michigan, found that standard of living drops 30 percent for women and rises 10-15 percent for men in the one year' following divorce.
[Women in Divorce: Lawyers, Ethics, Fees & Fairness: A Study by the City of New York Department of Consumer Affairs at 8-9 (Mar.1992).]
The majority downplays the woman’s loss of freedom or autonomy by asserting that the case is not about sex, but that it is about money, the freedom of contract, and whether the anti-cohabitation provision entered into was “voluntary, knowing and consensual,” ante at 203, 729 A.2d at 17 and based upon “mutuality, voluntariness and fairness.” Ante at 198, 729 A.2d at 14. It offends our intelligence for defendant to suggest that the anti-cohabitation clause in this case is not about sex. If the clause were not about sex, why then is cohabitation with another person of the same sex permitted without a reduction in support?
For reasons rooted in our past, “social conventions [still seek to] ... deny women the same chance of sexual happiness as men.... ” Alan Ryan, Cultural Perversions, N.Y. Times Book *206Review at 16 (Mar. 14, 1999) (reviewing Martha C. Nussbaum, Sex and Social Justice (1999)). There is a double standard at play here that .views women as having a lesser .need than men for companionship of the opposite sex, “yet ... universally punishe[s] [women] if they display evidence to the contrary____” Natalie Angier, Men, Women, Sex and Darwin, N.Y. Times Magazine, Feb. 21, 1999, at 51.
The danger against which courts have guarded in the past concerns “the numerous ways in which a spouse can use [economic power associated with spousal support] to exert unjust and inappropriate control over the recipient’s personal life.” Sara Z. Moghadam, The Maryland Survey: 1995-96: C. Dismissing the Purpose and Public Policy Surrounding Spousal Support, 56 Md. L.Rev. 927, 927 (1997). “Modern constitutional development of privacy rights [views] a decision of continued alimony based on the sexual habits of either a man or woman highly suspect.” Evan J. Langbein, Post-Dissolution Cohabitation of Alimony Recipients: A Legal Fact of Life, 12 Nova L.Rev. 787, 788 (1988). ‘Whether one defines [the right to privacy or personal development] as a ‘right to intimacy and a freedom to do intimate things,’ or ‘a right to the integrity of one’s personality,’ ” see Henkin, “Privacy and Autonomy,” 74 Colum. L. Rev. 1410, 1419 (1974), the essence of the matter is that “governmental regulation of private personal behavior ... is sharply limited.” State v. Saunders, 75 N.J. 200, 213, 381 A.2d 333 (1977) (internal quotations omitted).
The Court repeats the reasoning of the Appellate Division that “there are no considerations of public policy which should prevent competent parties to a divorce from freely agreeing [to an anti-cohabitation clause]....” Ante at 197, 729 A.2d at 13 (quoting 307 N.J.Super. at 161, 704 A.2d 591). In other words, a deal is a deal. Not so long ago in the Baby M. decision, Chief Justice Wilentz dispatched such reasoning in a single sentence. He wrote: “There are, in a civilized society, some things that money cannot buy.” In re Baby M., 109 N.J. 396, 440, 537 A.2d 1227 (1988). In a civilized society, money cannot buy a woman’s right *207to choose her companions. A husband should not be able to demand an exchange of that freedom as a bargaining tool.
II
In Gayet, supra, 92 N.J. at 153, 456 A.2d 102, the Court adopted an economic needs test to determine whether cohabitation requires modification of an alimony award. The economic needs test has been followed by a majority of jurisdictions. Sally Burnett Sharp, Step by Step: The Development of the Distributive Consequences of Divorce in North Carolina, 76 N.C. L.Rev. 2017, 2100-01 (Sept.1998). We considered central that “[t]he extent of actual economic dependency, not one’s conduct as a cohabitant, must determine the duration of support as well as its amount.” Gayet, supra, 92 N.J. at 154, 456 A.2d 102. We conceded that “this approach to cohabitation may discourage marriage, at a time when human relationships have grown more and more transient.” Id. at 155, 456 A.2d 102 (citations omitted). Nonetheless, we emphasized that the test for support should be based upon economic circumstances because that standard “best balances the interests of personal freedom and economic support----” Id. at 154, 456 A.2d 102. Gayet, supra, was consistent with prior law and longstanding principles. See, e.g., Lepis v. Lepis, 83 N.J. 139, 151-52, 416 A.2d 45 (1980) (concluding that “changed circumstances” measured by economic needs of supported spouse remains standard in New Jersey and that “changed circumstances” warrant only modification, not elimination, of alimony). Subsequent decisions have reaffirmed that philosophy. See Melletz v. Melletz, 271 N.J.Super. 359, 368, 638 A.2d 898 (App.Div.) (concluding that “[cjohabitation clauses beyond the economic contribution standards of Gayet or other recognized matters of mutual concern fall short of this standard and will not be enforced”, certif. denied, 137 N.J. 307, 645 A.2d 136 (1994)); Pugh v. Pugh, 216 N.J.Super. 421, 422, 524 A.2d 410 (App.Div.1987) (declining to enforce cohabitation provision in separation agreement that disregards economic needs *208standard because such agreement “conflicts with our stated public policy to guarantee individual privacy, autonomy, and the right to develop personal relationships.”); Hurley v. Hurley, 230 N.J.Super. 493, 495, 553 A.2d 891 (Ch.Div.1988) (concluding that “changed circumstances” measured by economic needs of supported spouse remains applicable standard).
By abandoning the economic needs test of Gayet, ante at 197, 729 A.2d at 13, the Court has equated cohabitation with marriage. We have never equated cohabitation with marriage. Cf. Crowe v. De Gioia, 90 N.J. 126, 132, 447 A.2d 173 (1982) (refusing to recognize non-marital relationships as lawful marriages but allowing temporary support agreements between unmarried cohabitants based on equitable grounds though no statutory basis exists), appeal after remand, 203 N.J.Super. 22, 495 A.2d 889, aff'd (1985), 102 N.J. 50, 505 A.2d 591 (1986).
■Mrs. Konzelman is punished for her choice of companionship while Mr. Konzelman is relieved of the burden to demonstrate that his former partner’s financial status is any better because of her new relationship. That approach ignores the economic needs and dependency test that underpins an alimony obligation. The trial court found that Mrs. Konzelman’s financial status had improved only to the extent of $170 per week because of her relationship.
Mrs. Konzelman was married for twenty-seven years. The record does not disclose whether she left work to raise her children, thereby decreasing her potential for earnings. That is often the case.
Although wives today may be less economically dependent on their husbands than was the case in the past, it remains true that the typical, alimony recipient is a woman who has sacrificed her earning capacity to her marriage and who, as an equitable and practical matter, must look to her former husband for financial support following a separation or divorce. Such women have little bargaining power and to a large extent must rely on judicial supervision to ensure that their entitlement to support is not made contingent on unjust or unreasonable conditions.
[Bell v. Bell, 393 Mass. 20, 468 N.E.2d 859, 863 (1984) (Abrams, J., dissenting) (citing Knox v. Remick, 371 Mass. 433, 358 N.E.2d 432 (1976), cert. denied, 470 U.S. 1027, 105 S.Ct. 1392, 84 L.Ed.2d 782 (1985)).]
*209See also Guglielmo v. Guglielmo, 253 N.J.Super. 531, 543, 602 A.2d 741 (App.Div.1992) (holding to same effect).
Dependency acquired during the marriage based on the marital roles assumed by the parties is at the heart of an alimony obligation. It is manifestly unfair to relieve Mr. Konzelman of all alimony obligations based upon Mrs. Konzelman’s choice of companionship with another man, when economic need is the true measure of alimony. The law is casting this partner of twenty-seven years into poverty for what, a sin? If her relationship ends, she will not even have, from the partners’ once-shared earning capacity, a dollar a week to live on while Mr. Konzelman will be permitted to reap the benefits of an increased earning capacity built up during the marriage.
Some states have enacted anti-cohabitation statutes that terminate alimony if the dependent party cohabits with a member of the opposite sex. Burnett Sharp, supra, 76 N.C. L.Rev. at 2099. New Jersey has not done so. Nor is it likely to do so. These laws are “Hydra-like statute[s] that [are] misguided, ambiguous, overinclusive, punitive, possibly void for vagueness, and ... [have] effectively thrown out the baby — proof of changed economic circumstances — with the bathwater. The change of circumstances standard, focusing on the economic contributions ... is a considerably more sensible and easy to follow standard.” Id. at 2106.
Although the majority bases its decision upon the first Gayet policy consideration that upon remarriage, “a new bond ... eliminates the prior dependency as a matter of law,” Gayet, supra, 92 N.J. at 151, 456 A.2d 102, the Court disregards Gayet’s latter consideration of an individual’s personal affairs and the right to be free from governmental interference. Ante at 197, 729 A.2d at 13. The two policies are inextricably intertwined.
In Melletz, supra, Judge Dreier punctured the hypocrisy attendant to anti-cohabitation clauses by asking the rhetorical question: could a divorced wife obtain a similar promise from her husband in return for less alimony? 271 N.J.Super. at 365-66, 638 *210A.2d 898. That court concluded that the agreement could not be upheld because it represented an attempt to control the former spouse’s conduct and to “attach conditions to [the] receipt of ... alimony which are unrelated to her financial status [and] would contravene the very purpose of alimony.” Id. at 367, 638 A.2d 898 (citation omitted).
Ill
Finally, the enforcement of anti-cohabitation clauses imposes a needless burden on the judiciary and the matrimonial bar. This trial consumed thirteen days over three months and included twenty-six witnesses. The evidence included the reports and testimony of several private investigators, one of whom watched Mrs. Konzelman’s home seven days a week for 127 days. It would not have taken thirteen days or a spy in her yard to determine that Mrs. Konzelman’s companion contributed $170 a week to the household. As a result of the Court’s ruling, each Konzelman hearing hereinafter will result in an exhaustive (and exhausting) inquiry into whether the situation involved something more than “a mere, romantic, casual or social relationship....” Ante at 202, 729 A.2d at 16. (Does this mean that there is a platonic defense to anti-cohabitation clauses?) Such tasteless inquiries into the private lives of divorced women, when unnecessary, are beneath the dignity of the judiciary.
In addition, by approving anti-cohabitation clauses, the Court will force attorneys and parties to bargain over the fair value of the clause. The Court’s holding invites husbands to seek such clauses, perhaps as a bargaining chip. There are only two purposes for the clause, either to eliminate the need to examine changed economic circumstances or to retain control over the divorced spouse. Either way, there will be a price. Wives will not wish lightly to contemplate the kind of surveillance this woman endured. It is the regrettable the way of the world that only the wealthy will want to or will be able to buy the clause. I would not *211add to the already emotionally charged denouement of a marriage this unseemly bit of bargaining.
IV
The respected Justice Ruth Abrams of the Supreme Judicial Court of Massachusetts has said it best:
By giving its imprimatur to an interpretation of the [anti-cohabitation clause] that hinges the plaintiffs entitlement to support on her conformity to life-style requirements imposed by the defendant, the court encourages economieally-dominant husbands to meddle arbitrarily with the postdivorce lives of their wives----
[Bell, supra, 468 N.E.2d at 863 (Abrams, J., dissenting).]
I agree. I would reverse the judgment of the Appellate Division and reinstate that of the trial court reducing Mrs. Konzelman’s alimony by $170 per week.
STEIN, J., joins this opinion.
For affirmance — Chief Justice PORITZ and Justices HANDLER, POLLOCK, GARIBALDI and COLEMAN — 5.
For reversal — Justices O’HERN and STEIN — 2.