Can same sex couples cohabitate in a situation analogous to marriage?

In Stroud v. Stroud, the Court of Appeals in an opinion by Judge Haley reversed Judge Keith from Fairfax County on the issues of "(1) whether the evidence compels the conclusion that the terms of a property settlement agreement ('PSA') terminating spousal support upon 'cohabitation with any person . . . in a situation analogous to marriage' have been met, and (2) if so, whether such a clause involving a relationship among persons of the same sex is operative as a matter of law in Virginia."

The trial court ruled: "in Virginia, where marriage between persons of the same sex is barred -- 'cohabit' has to mean between people of the opposite sex . . . as a matter of law, in Virginia, people of the same sex cannot cohabit, and that's how the PSA was written."

In this article about the case, one commentator said: "The legislature certainly does not recognize same-sex relationships as anything--they don't even recognize the capacity of same-sex couples to contract. . . . So the fact that a court is saying a relationship between same-sex couples can be analogous to marriage is important."

Over at Waldo's blog, I offered this comment:

The marriage amendment, Art. I, section 15-A of the Constitution is not mentioned in the opinion, probably because the case predates the effective date of the amendment.

The double irony is that (a) the contract at issue here is a contract between a man and a woman, and (b) the person in the same-sex relationship was the one trying to use the statutory same-sex marriage ban as a shield against the enforcement of the contract. The court ruled the contract between the man and the woman is enforceable and the same-sex marriage ban is irrelevant. Probably that is a sound and unremarkable result, so much so that it is difficult to see how it would contribute to the evolution of the law toward the legal recognition of same-sex couples’ rights which Waldo has been predicting for some time.

When someone like Robyn sues claiming some kind of common law entitled to someone like Ms. Stroud’s stuff, that’s when heads will explode.