Cohabitating Couples and Domestic Partnerships

Domestic partnerships were a commonly sought after relationship until 2015 when Obergefell v. Hodges declared state laws on same-sex marriage bans unconstitutional. The benefits of a domestic partnership are similar to those of a married couple. 

What is a Domestic Partnership?

A domestic partnership aims to give each partner in the partnership many of the same benefits as married couples. These include both economic and noneconomic benefits, such as:

  • Health insurance
  • Life insurance
  • Death benefits
  • Parental rights
  • Sick and family leave
  • Tax benefits

However, with Obergefell granting marriage rights to same-sex couples, there has been a decline in the number of domestic partnership relationships, as more same-sex couples are choosing to get married.

Common Law Marriage

A common law marriage is one by which two people consider themselves married, but they do not have a formal ceremony or license. They often consider themselves as married based on cohabitation. Virginia does not allow for the creation of a common law marriage based on cohabitation, or in general. The Court held in Murphy v. Holland that common law marriages contracted in the state are not considered to be legally binding or recognizable. 

Cohabiting Couples

Cohabitation is defined as two people living together as if they were a married couple. Cohabiting couples do not possess the same rights as married couples or people within a domestic partnership. This is because the law recognizes the significance of the marriage union and does not want to infringe upon individual autonomy or unfairly benefit a couple. 

Virginia Code § 20-109(A): Termination of Spousal Support Based on Cohabitation 

Virginia Code § 20-109(A) provides for termination of spousal support “upon clear and convincing evidence that the spouse receiving support has been habitually cohabiting with another person in a relationship analogous to a marriage for one year or more.” Whether a spouse is cohabiting with someone else is crucial in seeking a modification, or termination, of spousal support. 

What is Considered “cohabitation analogous to a marriage?”

In 2016, the Supreme Court of Virginia set forth an analysis of what is considered “cohabitation analogous to a marriage” in Luttrell v. Cucco. 

In this case, a couple entered their Final Decree of Divorce in 2008. Six years later, in 2014, the ex-husband filed a motion to terminate spousal support, claiming that his ex-wife was engaged and had been cohabiting with her fiancée (who was another woman) for at least a year. The ex-wife argued that since her relationship was with another woman, it was not in line with the meaning of “cohabitation” as intended in the Virginia Code § 20-109(A). The Circuit Court agreed with this argument, concluding that only opposite-sex couples could cohabit under the Code. This meant that the couple had to have the ability to marry if their cohabitation were to be analogous to a marriage. 

The ex-husband appealed this decision, leading to the Court of Appeals to affirm the trial court’s decision.

The ex-husband then appealed to the state Supreme Court, which stated, “The language of 20-109.1(A) is gender neutral. The words spouse and person encompass individuals of either sex, and thus, the provision may be understood to apply to either same-sex or opposite-sex relationships.” The Supreme Court of Virginia reversed the Court of Appeal’s decision and concluded that cohabitation analogous to marriage extended to cohabitation between persons of the same sex. 

Determination of Whether a Couple is Considered to Cohabit

The Virginia Court of Appeals has looked at numerous factors that are considered in determining whether a couple is considered to be cohabiting. The following list includes factors that are looked to, but are not exhaustive.

Factors Used in Determining Whether Cohabitation Exists:

  • Sharing a common residence
  • Provision of financial support
  • Intimate or romantic involvement
  • Duration and permanency 
  • Functioning together as a family unit 
  • Routinely sharing meals
  • Attending events together, both familial and social
  • Providing childcare 

In summation, cohabitation is crucial to look at in considering termination of spousal support. However, cohabitation does not afford cohabiting partners the same rights and obligations as married couples. 

Special thanks to co-author and fellow researcher, Hayden-Anne Breedlove for her contribution with this article. Hayden-Anne Breedlove anticipates graduating from the University of Richmond School of Law in May of 2019.

If you have questions about cohabitation, contact a Virginia divorce lawyer today. 

H. Van Smith
Trusted Virginia Family Law Attorney Serving Richmond to Williamsburg