Va. Court Recognizes Same-Sex Relationship in Private Contract

March 1, 2007

Even though same-sex couples can’t get married in Virginia, they can live together in a situation that’s comparable to marriage in the eyes of the law, the state Court of Appeals ruled Tuesday.

A three-judge panel unanimously reversed Fairfax County Circuit Judge M. Langhorne Keith’s ruling that the word “cohabit” can only apply to a man and a woman because of the state law barring gay marriage.

The ruling stems from a Fairfax couple’s 1994 divorce. A property settlement agreement required the husband to pay the wife $4,000 per month, with the payments ending upon either party’s death or the woman’s remarriage or “cohabitation with any person … in a situation analogous to marriage.”

After the divorce, the ex-wife began living with another woman in a sexual relationship that also included joint child-rearing and household duties. The ex-husband went to court to have the spousal support payments terminated.

Keith ruled in favor of the ex-wife, citing the gay marriage ban as well as a 1994 attorney general’s opinion that a domestic violence law does not apply to cohabiting same-sex partners.

The appeals court said none of that mattered in this case, which centers on the language in a contract between the husband and wife and the facts of the woman’s subsequent relationship with her partner, not the public policy on gay marriage.

“Succinctly stated, that relationship, as established by the facts, is similar ‘but not identical in form and substance’ to a marriage,” Judge James W. Haley Jr. wrote, quoting from Black’s Law Dictionary.

Attorneys for the divorced couple did not return phone calls seeking comment.

University of Richmond law professor Carl Tobias said the appeals court seemed to be treating same-sex couples the same as heterosexual couples but only in the narrow analysis of contract law, not the broader public policy context.

Chris Freund, spokesman for conservative Family Foundation of Virginia, said the ruling proves that opponents of last year’s constitutional amendment prohibiting gay marriages and civil unions were wrong in claiming the measure would interfere with private contract rights.

“Today’s decision is simply about a contract between two people and has nothing to do with how the Commonwealth of Virginia defines or recognizes marriage,” he said.

But David Spratt, former chairman of the Virginia Bar Association’s Domestic Relations Section, said the ruling could have more far-reaching consequences depending on how this area of the law evolves.

“The legislature certainly does not recognize same-sex relationships as anything; they don’t even recognize the capacity of same-sex couples to contract,” said Spratt, now a legal rhetoric professor at American University, Washington College of Law. “So the fact that a court is saying a relationship between same-sex couples can be analogous to marriage is important.”

He noted that Virginia law defines adultery as sexual intercourse between a married person and someone of the opposite sex. By recognizing same-sex cohabitation, the court could provide the impetus to change the adultery law to cover homosexual acts, Spratt suggested. Such legislation died in the session that ended Saturday.

The gay-rights group Equality Virginia, which opposed the so-called “marriage amendment” that was approved by voters in November, had no immediate response to the ruling.


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