As it stands, Virginia’s no-fault divorce statute, VA Code § 20-91(A)(9)(a), does not include any reference to same-sex couples. The oversight in the statute was addressed in the 2019 case of Celia v. Appel when the Fairfax Circuit Court declared the statute unconstitutional.
VA Code § 20-91(A)(9)(a) states “On the application of either party if and when the husband and wife have lived separate and apart without any cohabitation and without interruption for one year.” This wording not only does not mention same-sex couples, but before Celia, also seemed to exclude them from being able to use no-fault divorce.
The 2019 Case
This case was brought before the Virginia court because a same-sex couple was seeking a divorce after having been separated for more than one year. In deciding the matter, the court principally used the case of Obergefell v. Hodges as its reasoning for deciding that VA Code § 20-91(A)(9)(a) is unconstitutional. Obergefell was decided in 2015 by the Supreme Court of the United States and made it so that same-sex couples are afforded the same marital rights, benefits, and responsibilities as opposite-sex couples. The judge’s official decision was that the statute will extend its benefits to include same-sex couples, instead of being abolished because abolishment would “cause further harm to the family unit by forcing spouses to publicly assign fault to one another in order to terminate their marriage.”
Interestingly, this case was not the first time the same parties and judge produced a decision in which same-sex couple’s rights were expanded. In 2018 the same parties brought a case before the same judge in which Virginia’s assisted conception statute was at issue. The court then interpreted the statute to include same-sex couples where the wording seemed to exclude them.
Celia v. Appel, No. CL-2018-8735 (Fairfax CC, August 23, 2019)
We Can Help
If you need a lawyer to help you through the difficult process that is divorce, please call one of our offices at (804) 325-1245 (Richmond) or (757) 941-4298 (Williamsburg). One of our attorneys will meet with you and guide you through this trying time in your life.
Editorial Assistance by Michael Gee