The California courts have ruled that when two people living out of wedlock break up, one partner can compel the other to divide his or her property just as though they had been married. The ruling, which is expected to be mimicked by state courts across the nations, is particularly irritating since, "increasingly, the legal structure itself is providing a disincentive to marriage." Or so says Richard Neeley, a judge on the bench of the West Virginia Supreme Court of Appeals, in the September issue of "Juris Doctor," the only legal publication I know of with more than a passing interest in the claims of justice.

One of the reasons that people who love each other and want to live with each other avoid marriage, cost what that may, is the suspicion that getting hitched in the eyes of the law weds them less to each other than to unknown but serious legal commitments. The judge agrees:

"For example, what is 'dower'. Well, it is a third-third life estate in all corporeal hereditaments of which a husband is seized during coverture, whatever the hell that means; but if you just got married and own real estate, it dictates that you can't sell it without your wife's consent. What starry-eyed teen-ager, thinking more of a waterbed in a motel room than of a lawsuit, ever contemplated the implications of dower interests . . ."

A lot of non-teen-agers don't think about it either. Those who do often also think marriage isn't a very hot idea. For them living together is better. You can see why when you own even a not-too-big piece of property. You may be in love but you're not out of your mind, and so you know there is a healthy statistical probability that the marriage with this divine man or woman won't last.

The judge suggests a pre-nuptial contract to get around that problem. He says they're not absolutely binding on a judge granting a divorce, but that such a contract, if drawn by lawyers of both parties, would supersede the requirements of the divorce law as well as protecting man and woman from the damage a wrong-headed, old-fashioned, pietistical judge can cause.

Unluckily for most of us, we can't mix dollars and roses that way. We can't bring ourselves to say, "I love you darling, but let's talk turkey before we let passion make us murky." The thought, however, is often in the back of the head, and for those people there is living in sin.

At least there was until the courts began to butt in. The theroy behind this intrusion is the protection of the exploited party in the liaison. Suppose a man and a woman live together for four or five years; suppose the man works and the woman stays home and does things traditionally associated with the wifely role, and then the liaison goes kerplunk. In the past, she would be left with nothing, but now, in California at least, she may go to court and claim all that she would have been entitled to had she and this varlet been married.

That makes sense, if you accept the proposition that we must design the society so people do not have to make any effort to protect themselves. In this not-too-hypothetical case, financial protection is extended to one of the parties, although she's had years to say marry me or find yourself another free house slave. To protect her, the courts are willing to pass a law jeopardizing the freedom and free relationships of hundreds of thousands if not millions of persons.