(specially concurring)
I concur as to the result affirming the trial court, but dissent as to the pronouncements concerning cohabitation.
Two learned members of this court hold when a petitioner in a modification action proves a prior spouse receiving alimony is cohabitating, the burden shifts to the recipient to show why alimony should continue in spite of the cohabitation. By doing so, they blur the distinction between marriage and cohabitation which has been definite in Iowa. It has always been the law of this state that cohabitants are not afforded the same legal rights or responsibilities as married persons. Our supreme court heartily embraced this principle in Slocum v. Hammond by rejecting the concept of palimony. In Slocum, the court quoted this language:
The policy of this state is that the de jure family is the basic unit of social order. This policy is reflected in statutes governing the right to marry. See Iowa Code chapter 595 (1983). It is reflected in the rule recognizing common law marriages. It is demonstrated by statutes defining the rights and responsibilities of husbands and wives toward each other and toward their children. See, e.g., chapters 597 and 598. The policy favoring marriage is not rooted only in community mores. It is also rooted in the necessity of providing an institutional basis for defining the fundamental relational rights and responsibilities of persons in organized society. This policy would be subverted if persons could gain marital legal rights without accepting correlative marital legal responsibilities. We need go no further than this in rejecting plaintiffs’ invitation in the present case.
Slocum v. Hammond, 346 N.W.2d 485, 491 (Iowa 1984) (quoting Laws v. Griep, 332 *706N.W.2d 339, 341 (Iowa 1983)). The majority’s holding burdens cohabitant with responsibility of marriage without the corollary rights. In addition, although defined by the majority, cohabitation exists in a multitude of forms and is hard to pin down by definition, making this holding difficult to apply.
The majority uses this court’s decision in In re Marriage of Wendell, 581 N.W.2d 197, 199-200 (Iowa App.1998) to support a change in the burden-shifting analysis. In re Marriage of Wendell does not support the change. In Wendell, we held because cohabitation has too many variables to be a defined future event, it would be inappropriate to use cohabitation as an event to automatically terminate alimony in an original dissolution decree. See Wendell, 581 N.W.2d at 200. Rather, we held, it was better to reserve the question of whether cohabitation would terminate alimony in an action to modify the decree based on a substantial change of circumstances under Iowa section 598.21(8)(a).
There is no reason to blur the legal distinction between marriage and cohabitation as the majority does here. Cohabitation should remain a factor to consider in determining whether there has been a substantial change in circumstances warranting modification. See Iowa Code § 598.21(8); see also Schober, 379 N.W.2d at 47; In re Marriage of Wendell, 581 N.W.2d 197 (Iowa App.1998). It should not be elevated to the same legal effect as remarriage.
MAHAN and ZIMMER, JJ., join this special concurrence.