Does Virginia Recognize A Cohabitation Agreement For A Same Sex Couple Joined In A Civil Union In One Of The Five States Or The District Of Columbia That Recognize Civil Unions?
Wednesday, August 7, 2013

Does it make a difference if the cohabitation agreement is written before or after the same sex couple enter into a civil union in one of the 5 states or the District of Columbia that recognize civil unions?

Virginia is among the states that honors cohabitation agreements. (Illinois and Georgia are the only two states where cohabitation agreements are not recognized, Journal of the American Academy of Matrimonial Lawyers, Vol. 23, #2, 2010, p 397).

However, Virginia courts may well view a cohabitation agreement between a same sex couple as an attempt to recreate a marriage and therefore void ab initio under Virginia’s Defense of Marriage Act (DOMA). Former Attorney General Robert F. McDonnell wrote an Attorney General's advisory Opinion in 2006 that would seem to indicate that any cohabitation between same sex couples who have entered into a civil union in a state which recognizes them would be void if it was sought to be enforced in Virginia. Responding to whether the DOMA would affect the current legal rights of unmarried persons Mr. McDonnell stated in 2006 that “…passage of [the DOMA] will not affect the current legal rights of unmarried persons involving contracts, wills, advance medical directives, shared equity agreements or group accident and sickness insurance policies, or alter any other rights that do not “approximate the design, qualities, significance or effect of marriage: or create “the rights, benefits, obligations qualities or effects of marriage.” Virginia Practice, 2012 ed., §1:11, page 33,quoting Robert F. McDonnell, Advisory Attorney General Opinion, dated September 14, 2006).

It therefore appears that while a cohabitation agreement can be written for the couple before they enter into a civil union elsewhere; if the cohabitation agreement tries to create or preserve any rights akin to marriage, Virginia courts will very likely hold the contract to be unenforceable.

 

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