concurring:
I agree entirely with the result reached by the panel. The Orphan’s Court having found an express agreement by Mr. Scuderi to reimburse Mrs. Donovan for the various (and considerable) sums she expended at his request or on his behalf, his estate should be required to make good on that agreement.
*229In order to reach that manifestly just result, however, Judge Lowe had to steer a careful course around the shoals of Baxter v. Wilburn, 172 Md. 160 (1937), which he did by (1) casting some doubt as to whether the evidence sufficed to show a "meretricious relationship” in the first instance, and (2) concluding that, in any event, the sums advanced by Mrs. Donovan were not expressly predicated upon a continuation of such a relationship.
I have some difficulty with both of those premises. The evidence seems clear enough to me that Scuderi and Donovan were involved in an amorous, and, at least as to him, an adulterous relationship; and a fair inference could be drawn that Mrs. Donovan would not have advanced the sums involved absent that relationship. It is naive at best to assume that she would have expended $60,000 to buy him clothing, meals, artwork, etc., if he had never entered into the "loving” relationship with her, or had withdrawn from it.
The problem, it seems to me, is with Baxter itself, and that is what prompts me to write this concurring opinion.
Baxter'was decided in 1937. The heart of it is this language appearing atpp. 162-63 of 172 Md. (citations omitted):
" 'Contracts based upon the consideration, either past or future, of illicit sexual intercourse, or stipulating for such future intercourse, or in any manner promoting or furnishing opportunity for unlawful cohabitation/ are void and unenforceable in equity. . . . But the mere fact that a man and a woman are living together in an unlawful relation does not disable them from making an enforceable contract with each other, if it has no reference to continuation of the relation, or is only incidentally connected with it, and may be supported independently of it.” (Emphasis supplied.)
These principles are couched in very broad language. What is meant, for example, by "unlawful” cohabitation, or "illicit” sexual intercourse? Is the reference point a specific statutory prohibition, some consensus of "public policy,” or what a particular judge determines to be "good morals”? See *230Comment, Illicit Cohabitation of Parties as Affecting Contracts Made Between Them, a review of Baxter appearing in 2 Md.L.Rev. 291 (1938); see also Comment, Further Concerning Illicit Cohabitation of Parties as Affecting Contracts Made Between Them, 5 Md.L.Rev. 331 (1941), reviewing Baxter in light of Lynch v. Rogers, 177 Md. 478 (1940).
The problem becomes especially troublesome in light of the vast changes in societal thinking about cohabitation between unmarried couples since 1937. It has been reported that between 1960 and 1970, the number of cohabitors in the United States increased eight-fold. At least one report estimated that, in 1976, there were as many as six to eight million unmarried cohabitors in this country. See Fineman, Law and Changing Patterns of Behavior: Sanctions on Non-Marital Cohabitation, 1981 Wis.L. Rev. 275, and in particular footnote 1 on p. 275; also Glendon, Marriage and the State: The Withering Away of Marriage, 62 Va.L. Rev. 663, 685, et seq. (1976). Bureau of Census statistics indicate a somewhat fewer number of cohabitors — about 1.6 million couples. See U.S. Bureau of the Census, Dept, of Commerce, Current Population Reports, Series P-20, No. 365, Marital Status and Living Arrangements, Oct., 1981.
As pointed out by Professor Mary Ann Glendon in her Virginia Law Review article, supra, "[c]ohabitation is favored among young People[,] among pensioners and others receiving benefits terminable or reducible upon formal marriage, and increasingly among other diverse social groups.” Id. at 686; footnotes omitted. This is not necessarily the result of sexual promiscuity; and, indeed sexual attraction, though often present, may at best be an incidental consideration. Men and women enter into these relationships for a variety of reasons. Glendon observed (Id. at 687):
"Motivations to enter informal rather than legal marriage include economic advantages as in the case of many elderly people, inability to enter a legal marriage, unwillingness to be subject to the legal effects of marriage, desire for a 'trial mar*231riage,’ and lack of concern with the legal institution. This lack of concern is nothing new among groups accustomed to forming and dissolving informal unions without coming into contact with legal institutions. Among these groups legal marriage is but an aspect of the irrelevance of traditional American family law, law that is viewed as being property-oriented and organized around the ideals of a dominant social group. Lack of concern with marriage law has been growing, however, among many who definitely are not outside the mainstream of American life. Until recently these converts accepted unquestioningly the traditional structures of the enacted law, but they now find that on balance the enacted law offers no advantages over informal arrangements.” (Footnotes omitted.)
To some extent, the increasing desirability of cohabitation without benefit of clergy is actually promoted by our public laws and institutions. For example:
(1) Where both parties are wage earners, the Federal income tax laws, since 1969, have provided an economic incentive for couples to remain unmarried. See Bittker, Federal Income Taxation and the Family, 27 Stanford L.Rev. 1389, 1429, et seq. (1975); Note, The Haitian Vacation: The Applicability of Sham Doctrine to Year-End Divorces, 77 Mich.L.Rev. 1332 (1979). This "marriage penalty” has been partially alleviated by Section 103 of the Economic Recovery Tax Act of 1981, Pub. L. 97-34 (1981), but it still exists. See S.Rep. No. 97-144, 97th Cong., 1st Sess., pp. 29-33 (July 6,1981), reprinted in 6 U.S. Code Cong. & Ad. News 191, 222-26 (Aug. 1981).
(2) Older people, on fixed incomes, often cannot survive living alone; and, especially where they rely on social security or pension benefits attributable to the earnings of a deceased spouse, there is a clear disincentive to remarry. See Glendon’s article, supra, 62 Va.L.Rev. at 687 (footnote 99).
(3) Conversely, a number of traditional disincentives to *232unmarried cohabitation have been (or are being) swept away as courts have begun to apply to such status some of the rights, obligations, and benefits that once were reserved to the marital relationship. See, for example, Marvin v. Marvin, 557 P.2d 106 (Cal. 1976); Kozlowski v. Kozlowski, 403 A.2d 902 (N.J. 1979); Carlson v. Olson, 256 N.W.2d 249 (Minn. 1977); Beal v. Beal, 577 P.2d 507 (Or. 1978); but compare Hewitt v. Hewitt, 394 N.E.2d 1204 (Ill. 1979); also Markham v. Colonial Mortgage Service Co., Associates, Inc., 605 F.2d 566 (D.C. Cir. 1979); Comment, Protection of Unmarried Couples Against Discrimination In Lending Under The Equal Credit Opportunity Act, 93 Harv.L.Rev. 430 (1979).
All of this indicates a somewhat grudging and still incomplete, but nevertheless changing view toward the overall relationships between men and women, and toward unmarried cohabitation in particular. It is a view that does not square entirely with the broad principles enunciated in Baxter.
I do not suggest that Baxter be overruled; only that it be reviewed and limited. Agreements to pay value for acts of prostitution or adultery ought to remain judicially unenforceable because the Legislature has expressly declared such acts to be illegal and therefore against public policy. To enforce those types of agreements would create a contradiction between the civil and the criminal law. But when we venture much beyond that, we run into a real thicket that courts ought to avoid. For example:
(1) Is a cohabitating relationship founded upon economic or other considerations "meretricious” merely because it also involves or includes sexual contact between the parties?
(2) Would it make a difference if (a) the sexual contact is an important or even critical element in the relationship, or (b) if one or both of the parties is legally married to someone else but separated (i) by decree of divorce a mensa et thoro, (ii) by formal agreement, (iii) by mere acquiescence, or (iv) without agreement?
(3) In which, if any, of these cases, should the courts *233decline to enforce reciprocal rights and obligations arising from the parties having co-signed leases, mortgages, chattel or personal loans, or having taken title to property jointly, where such actions were taken in consideration of the overall relationship between the parties and with a clear view toward its continuation?
(4) Should a different rule apply where, as here, the relationship in question falls short of actual, full-time cohabitation, but involves sexual contact as part of a broader spectrum of personal ties?
These are things that the Court of Appeals, or the General Assembly, should look at anew. We, of course, as Judge Lowe correctly observed, are bound by the law as it presently exists. I would hold, however, if I were free to do so, that a contract such as that involved here should be enforceable even if it was expressly conditioned on the fact and the continuation of the overall relationship between Donovan and Scuderi, one element of which was the periodic commission of adultery. I would restrict the bar of Baxter to express contracts for sexual acts that the law itself declares to be illegal. In this area, at least, I would divorce the law of contracts from what appears to be a shifting and somewhat uncertain public sense of morality.