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.
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