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Article 134- Cohabitation, Wrongful

Paragraph 69 (Article 134) of the Manual of Court Martial concerns wrongful cohabitation. The text of the article says that any neglect or disorder that is against the discipline or good order of the armed forces, or any conduct, the nature of which can bring discredit to the armed forces will be punishable by a court martial.

According to Bouvier's Law Dictionary, the judicial definition of 'wrongful cohabitation' is, 'the state or act of two individuals (man and woman) who are not married but living together in the same dwelling and behaving as spouses'.

The word cohabitation means 'to live together'. It may be that an enlisted member is residing with the other person in the same family, or they are living together as lawful spouses. In that case, it becomes lawful cohabitation.

The fact that the enlisted member was not married to the other person is indispensable to prove this offense. It may be that an enlisted member is in fact married to the other person but the couple have not shared this information with others. An outsider may think that they are behaving as husband and wife while he thinks they are not and will therefore complain. If the enlisted member is charged with wrongful cohabitation in this case, he can use his hidden marriage as a defense.

Elements of Paragraph 69 (Article 134- Cohabitation, Wrongful)

  • The defendant and another person publicly and openly lived together as spouses and held each other as such.
  • The other individual was not actually the spouse of the defendant.
  • In the circumstances, the defendant's conduct was against the discipline and good order expected of enlisted members or the nature of the conduct was such that it brought discredit to the armed forces.

According to an article that appeared in USA Today in 2005, more than 2/3 rd of all married couples in the U.S have lived together before their marriage. Before 1970, it was illegal to cohabit in the U.S. Clearly, times have changed. But the U.S armed forces hold their personnel to a higher standard.

But unless an enlisted member introduces another person as his wife or husband (willfully gives that impression) when he is not married to that person or is causing a ruckus in his command with his behavior, there should not be a problem.

If an enlisted member is cohabiting with someone from his command, it might be enough to charge him under 'discipline and good conduct' issues. There might also be trouble if one of the individuals in the relationship is a subordinate. If an enlisted member is cohabiting with his partner on military provided accommodation, for instance, if he is living on base, then too the military might have a problem.

Maximum punishment for wrongful cohabitation

The maximum punishment for this offense is four months of confinement and forfeiture of 2/3 rd of pay month for up to four months.

Explanation for certain elements in the paragraph

The offense of wrongful cohabitation is different from the offense under Paragraph 62 (Adultery). In the former, the prosecutor does not have to prove that the enlisted member or one of the enlisted members was married or that the couple have engaged in sexual intercourse.

It is not even necessary to show that the couple's relationship was in public knowledge, but the prosecutor has to prove that the couple have behaved in a manner (exhibited by their language or conduct) that led others to believe that they were in a marital relationship.

Note that the military does not recognize same-sex marriages. This offense only applies if an enlisted member is living with the other person as 'husband and wife'. This crucial element is missing in the case of same-sex partners. Therefore, wrongful cohabitation in the current form, does not apply to same-sex relationships.

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