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There are two key elements to be considered in determining whether a party is cohabiting with another: common residency and sexual contact evidencing a conjugal association. Common residency means the sharing of a common abode that both parties consider their principal domicile for more than a temporary or brief period of time. Sexual contact means participation in a relatively permanent sexual relationship akin to that generally existing between husband and wife.
Appellant Ingrid Haddow and respondent John Haddow were divorced. She waived her right to alimony and was awarded custody of the parties' three minor children, monthly child support, and the parties' home, subject to John’s equitable lien for half the equity in the home. The equity was payable when Ingrid moved out of the house, remarried, or cohabited with a male person. Subsequently, John filed a motion for an order requiring payment of half the equity in the home, contending that Ingrid was cohabiting with a man. It was established that Ingrid’s boyfriend spent several evenings a week visiting Ingrid in her home, but he maintained a separate residence. The trial court found that Ingrid was cohabiting with her boyfriend, and consequently ordered her to pay John half the equity in the home in which she was living. On appeal, the former wife challenged the trial court's conclusion that she was cohabiting with her boyfriend.
Under the circumstances, was cohabitation established, thereby warranting the trial court’s order for Ingrid to pay half the equity in the home in which she was living?
The Court noted that there were two key elements to be considered in determining whether a party was cohabiting with another” common residency and sexual contact evidencing a conjugal association. In the case at bar, the Court was satisfied that the findings established the presence of a relatively permanent sexual relationship. However, the common residency element of cohabitation was not established. Thus, the Court held that there was no cohabitation based on the evidence of non-residence.