For Legal Purposes, Is Voluntary Cohabitation Between Opposite-Sex Couples the Same as Cohabitation Between Same-Sex Couples Who Do NOT Have the Right to Marry?

I recently debated this topic with a colleague and I thought it was worth discussing here. The question is whether cohabitation between opposite-sex couples who choose NOT to marry should be treated the same for legal purposes when the relationship ends as same-sex couples in long-term relationships who cohabitated but did NOT have the right to marry.

Before we go any further, let me set the stage. For purposes of this discussion, let’s assume that the same-sex couple lived together in a committed relationship for 25 years. They had a commitment ceremony with 125 guests at a banquet facility complete with a live band, a sit-down dinner and a wedding cake. They exchanged vows and commitment rings. They celebrated their union the same as an opposite-sex couple would have with the exception that the State wouldn’t allow them to obtain a marriage license. As the years went by, they pooled their finances to purchase a shared home. They own 2 cars which are titled in both names. They have always maintained joint checking and savings accounts. Both names appear on their certificates of deposit (CDs). Each person is named as beneficiary on the other’s life insurance policy and retirement plan. When Connecticut finally legalized civil union in 2005, they obtained a license and renewed their vows before a Justice of the Peace. When Connecticut legalized same-sex marriage in 2009, they once again stood before Justice of the Peace. Life changed and they now wish to dissolve the relationship, which means they must obtain a divorce.

Okay. Now consider the opposite-sex couple who have lived together for 20 years. They discussed the possibility of marriage more than once and each time, opted not to walk down the aisle. Every day of those 20 years, they had the right to marry, yet they chose not to exercise that option.

The central difference between the 2 hypothetical couples is that the opposite-sex couple had a choice to marry or simply live together for the entire relationship. The same-sex couple did not.

Under the law, the legal relationship of the same-sex couple began on the date they entered into civil union. Essentially, it ignores 15 of the 20 years they resided together in a committed relationship.

Should that couple’s relationship for the purposes of divorce be considered the date that the had the commitment ceremony or the date their home state legalized same-sex marriage?  I believe the former rather than the latter should apply.

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Disclaimer: The information, comments and links posted on the blog do not constitute legal advice. I will not respond to any specific legal questions in the comments section of this blog.  Read my entire disclaimer.

copyright 2012 Irene C. Olszewski, Esq.

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