SAME-SEX DIVORCE: UNEQUAL ACCESS UNDER FEDERAL AND STATE LAWS

                     

SAME-SEX DIVORCE:  UNEQUAL ACCESS UNDER FEDERAL AND STATE LAWS

                Gay rights are advancing at an increasingly rapid pace.  Recently, the United States Ninth Circuit Federal Court of Appeal declared Proposition 8 (which banned gay marriage in California) to be unconstitutional (click here for article).  Even more recently, Maryland passed legislation enabling same-sex couples to marry (click here for article).  On a larger level, Countries around the world are  recognizing the rights of same-sex couples to marry.  Gay marriage is now legal in ten countries (Canada, Argentina, Belgium, Iceland, The Netherlands, Norway, Portugal, Spain, South Africa and Sweden).  While there is a long way to go towards equality for same-sex couples, in general, an atmosphere of hope, optimism, and excitement grows stronger every day.

Enthusiasm may be partly to blame for the problems that occur when same-sex couples wish to divorce.  Many same-sex couples, overjoyed at the prospect of being able to get married after constantly being told that their relationships would not be legally recognized, jumped at the opportunity to be wed.  Such couples now face significant barriers if their marriages break down and they wish to file for divorce.  NPR featured a very informative broadcast available here which provides great background information.

Attorneys who work with same-couples are increasingly advising their gay and lesbian clients not to get married because of the difficulty involved in getting divorced (click here for article).  Equality in terms of same-sex marriage has come a long way, but in terms of divorce lags far behind.  Same-sex couples, while they may wish to marry for all of the same reasons as opposite-sex couples, are often stopped from doing so by the practicalities posed by laws which make access to divorce difficult if not impossible.  For instance, how do married same-sex couples divide their property if their marriage breaks down?  How can they seek alimony or custody rights?

The gay divorce issue poses problems not only for jurisdictions which recognize gay marriage, but also for those that do not.  Recently, in Canada, a “firestorm of outrage” arose after government attorneys challenged the validity of a same-sex marriage performed in Canada on the grounds that it was not legal in their current places of residence (U.K. and Florida) (click here for article).  The Prime Minister, Stephen Harper, was quick to react stating that he has no plans on re-opening the same-sex marriage issue.  Comments suggesting otherwise seem to be largely based on misinformation by those who are quick to attack the Conservative government (click here for article).  In fact, since this story broke in January, the Justice Minister, Rob Nicholson, released a statement confirming the validity of same-sex marriages saying:  “I want to make it clear that, in my government’s view, those marriages should be valid” (click here for article).

Last week, the Federal government proposed new legislation that would declare same-sex marriages “valid for the purposes of Canadian law” and provides rules for same-sex divorce of non-residents (click here for the full text of the Bill).  In short, the bill provides rules for non-resident same-sex couples to obtain a divorce in Canada if they were married in Canada.  What the bill does not provide these couples with is a forum to deal with all of the attending issues that accompany a divorce (ie: alimony, child support, custody, property division) (click here for article).  The government simply cannot pass a law that would deal with all of these issues because it would both overwhelm the judicial system and also involve the courts stepping outside of the purview of their jurisdiction.  In short, divorce granted by this legislation is a symbolic act at best and does nothing to address the more practical concerns associated with divorce for non-residents.

One of the Problems – Residency Requirements

Most countries and states that allow same-sex marriages do not easily allow couples to divorce.  This problem arises due to residency requirements.  A residency requirement essentially requires an individual who seeks divorce to be a resident of that jurisdiction for a certain period (typically 6 months to a year).  Residency requirements for divorce make divorce a lengthy battle for heterosexual couples and same-sex couples alike.  To seek a divorce, one spouse must be a resident of the state in which they seek divorce for a minimum of 6 months in general, but often longer.  The problem is compounded for same-sex couples who marry in a jurisdiction that recognizes gay marriage and subsequently move to one that does not.

Another Problem – D.O.M.A. (Defense of Marriage Act)

On the federal level, The Defense of Marriage Act, 28 U.S.C. § 1738C, came into effect in 1996 and defines marriage as between a husband and a wife while ensuring that states do not have to recognize the validity of same-sex marriages performed in other jurisdictions.   On the state level, states either:  recognize gay marriage (as in Massachusetts); neither allow nor forbid it; or specifically forbid it through legislation or constitutional amendments to their respective state constitutions.  Courts (in states which do not recognize same-sex marriage) claim to lack jurisdiction to hear a divorce case because to do so would effectively mean that they would have to recognize gay marriage.  (For an excellent and current article describing the various constitutional principles involved, see Elisabeth Oppenheimer, No Exit:  The Problem of Same Sex Divorce, 90 N.C. L. Rev.73).  Oppenheimer notes the inherent contradiction in these non-recognizing states stating “it certainly is bizarre for gay marriage opponents to argue that a gay couple must remain married” (Oppenheimer 81).

Several late night talk show hosts have been quick to pick up on this issue and have featured reports which do a good job at exposing the confounding nature of this argument.  The Daily Show, with John Stewart, recently featured this special report in which correspondent Jason Jones interviews a religious figure who is completely against the idea of same-sex marriage.  It simply makes no sense for someone who is so vehemently opposed to same-sex marriage to want to keep such a couple together should their marriage break down.  Not to be outdone, The Colbert Report also featured a segment on same-sex divorce highlighting the same lack of coherence (see this clip @ time 3:25-4:40).

Potential Solutions – There Is No “Quick Fix”

After thoroughly researching the issue of same-sex divorce, Oppenheimer (infra) proposes several solutions but notes that “there are no obvious solutions” (73).  Judges are limited in what types of cases they can hear both by constitutional and statutory rules.  I agree with Oppenheimer when she concludes that any meaningful change is going to have to come from the legislature.  Until then, same-sex couples face a tough decision.  They will need to decide if the idea of marriage – something they have long struggled for – is worth the hassle considering the legal and logistical nightmares that could result if their relationships fall apart.  Those who advocate against same-sex marriage will continue to do so, but they should bear in mind that by refusing to provide a same-sex couple, who was validly married in another jurisdiction, with the option of divorce and everything that goes with that (ie: property division, custody orders, etc.), they are implicitly condoning gay marriage by keeping the couple together.

Photo 1:   found here on February 28, 2012.

Photo 2 found here on February 28, 2012.

Getting to Know LLTC: Rob Beharriell

Where did you grow up? How did you come to be here?

I was born and raised in Sault Ste. Marie, Ontario, Canada (near Northern Michigan).  I lived there until I was fourteen at which point my family moved to London, Ontario.  I spent my initial post-secondary years stumbling around aimlessly not knowing exactly what I wanted to do.  I had always thought about law as a career and began investigating it as a possibility.

I earned my B.A. in English Language and Literature at King’s College University at the University of Western Ontario (what a mouthful…we always just called it King’s for short).  I graduated my undergraduate program in 2006.  I
applied to law schools all over the place in Canada, the U.S., and Australia.  I had visited the NSU campus in 2007 on
spring break and was impressed with the law school here.  As fond of kangaroos, koalas, dingoes, and other Outback “critters” as I am, I decided it would be best to stay closer to home.  My three years here at Nova flew by (seems like just yesterday I was shaking like a leaf in my first doctrinal class – Professor Richmond’s 1^st year Torts class – praying to the
deities not to be called upon).

Where did you work prior to LLTC?

Before starting here I had worked as Professor Eric Young’s research assistant during the winter 2011 semester.
I worked on several interesting research assignments for him during the semester.  Prior to that I had worked in
a restaurant during most of my undergraduate studies, and also at a bank as a customer service representative.

When did you begin working for the LLTC?

I began working for the LLTC on September 26, 2011.

What do you do at LLTC?

I am a reference librarian on some days and on others I assist Mr. Heath Davis, Circulation Manager with some circulation projects.  I also work on special projects for the other librarians like helping to put together library guides for seminar courses.  Last but not least, I do whatever Jessica Nelson tells me to do because she is awesome!

What do you like best about your job? 

The people here at the library are an incredible group of individuals.  There is so much talent and diversity among the staff which makes this a very enjoyable place to work.

Furthermore, the dynamic nature of the job is such that every day here is different.  I am always learning about
new resources and innovative ways to help students, faculty, and patrons with their legal research issues.

Most importantly, I like that everyone here has a good sense of humor.

What are your proudest accomplishments on the job?

I just started, so I have not really had a chance to complete anything substantial just yet.  I brought in
treats to work one day for the staff and people went crazy for them.  I’ll pick that as my proudest moment so far.  And completing this blog too!

What do you enjoy doing in your spare time?

Riverdancing!  Just kidding, I enjoy reading, watching TV and movies, and listening to music.  I would eventually like to go skydiving but have had a difficult time finding anyone crazy enough to join me.

Favorite food?

I am a huge foodie!  I love cooking and dining out at nice restaurants. Nothing beats a good steak.  Wrap it in bacon and it’s even better!  If any of you have not been to Texas de Brazil, you need to stop what you are doing right now and go to your nearest one. They come around to your table with swords full of delicious meat and they keep bringing you more and more meat until you start to get the “meat sweats” and pass out (or until you are full, whichever comes first).  It is my favorite restaurant!

Also, I am Paula Deen’s number one fan.

Her cooking is insane!  I don’t eat any of it myself because I do not wish to die of a stroke or heart disease
before I turn forty.  How she is alive herself given her steady diet of butter is enough to baffle the brightest of
minds.  Rather, I enjoy watching her program because it is one of the most ridiculous and hilarious shows on TV.  I have never seen a person use so much butter in their cooking as she does.  I respect the fact that she acknowledges the fact that her cooking is unhealthy though and not meant for daily consumption.

I once saw her make hamburgers which she topped with fried eggs and then placed on top of a sliced Krispy Kreme donut instead of a bun.  I believe the episode was titled something like “Paula’s light lunch” or something equally as crazy.  Another time I saw her make mac & cheese in a casserole dish with tons of cheese, butter, and bacon; cut it into
squares; dredge and bread the squares and then deep fry the individual squares.  Clearly, this woman is a
genius, and way ahead of her time!  If you like Paula and have an appreciation for the absurd, you might want to
visit:  www.pauladeenridingthings.com.  It has brought me hours of laughter over the
years and it is a great place to go if you need some cheering up.

Favorite book?

If I had to pick just one, I would say Don Quixote, by Miguel de
Cervantes.  It has tragedy, comedy,
romance…really just the whole nine yards.
If you like reading about people who are ridiculous verging on brilliant,
then this is the right book for you.  A
quote from the novel:

“Destiny guides our fortunes more
favorably than we could have expected. Look there, Sancho Panza, my friend, and
see those thirty or so wild giants, with whom I intend to do battle and kill
each and all of them, so with their stolen booty we can begin to enrich
ourselves. This is nobel, righteous warfare, for it is wonderfully useful to
God to have such an evil race wiped from the face of the earth.”

“What giants?” Asked Sancho Panza.

“The ones you can see over there,” answered his master, “with
the huge arms, some of which are very nearly two leagues long.”

“Now look, your grace,” said Sancho, “what you see over there
aren’t giants, but windmills, and what seems to be arms are just their sails,
that go around in the wind and turn the millstone.”

“Obviously,” replied Don Quijote, “you don’t know much about
adventures.”

― Miguel
de Cervantes Saavedra, Don
Quixote

Is there any particular
advice you would like to share with students?

Take
advantage of the wealth of resources available to you at the LLTC.  Whether you are a first year who needs help
with an LSV assignment, or an upper year student who needs help with seminar
research, there are many very talented librarians who can help you in the
library.  Also, I am still trying to
figure out what the Rule Against Perpetuities is all about.  If you are worried about it for the bar or for
your final exam, don’t be!