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Same Sex Marriages, Civil Unions and Domestic Partnerships---How and Where Can They Be Terminated?

Massachusetts and, perhaps, California now permit Same Sex Marriages. Several States (including New Jersey) permit same sex Civil Unions or Domestic Partnerships.

A Same Sex Marriage can only be dissolved by a divorce and most Civil Union and Domestic Partnership statutes provide that they can only be terminated by an action tantamount to a divorce. The Rhode Island Supreme Court, however, has cast into doubt whether a State which does not permit Same Sex marriages or Civil Unions can dissolve such relationships.

The situation arises when parties who have entered into a same sex marriage or civil union now reside within the jurisdiction of a non-sanctioning State. In Chanbers v. Ormiston 935 Atl 2nd 956 (RI 2007) the Rhode Island Supreme held that the Courts of Rhode Island had no jurisdiction to terminate a Same Sex Marriage or Civil Union entered into in another State on the basis that Rhode Island does not authorize such unions. In a decision based upon the strict construction of its Family Court enabling statutes, the Court ruled that the Rhode Island Family Courts only had authority to dissolve "marriages" as defined and authorized by their State law. Thus, the litigants would be required, under the Rhode Island Supreme Court reasoning, to return to and re-establish residency in the (or, presumably, a) State which authorized their marriage or union.

In some case, New Jersey for example, that would require a period of 1 year of such residency prior to instituting the action to dissolve the Civil Union. It is respectfully submitted that such consequences offend the notions of Equal Process or Full Faith and Credit recognition of the Statutes of a sister state. It would seem that Rhode Island's apparent opposition to the underlying concepts of same sex marriages or civil unions has controlled its decision, not fundamental concepts of Equal Protection and Full Faith and Credit.

Should the Rhode Island reasoning become the prevailing law, it is further submitted that significant inequities will be visited upon person who entered into legal and binding relationships in their State of residence at that time simply because they subsequently relocate to another State which disagrees with the underlying validity of their relationship. Consider, for example, the inequity of requiring the party seeking the termination of the relationship to surrender their employment in order to return to the State of origin of their relationship in order to terminate the relationship.
Suppose there are children of the relationship, the children must be removed from school and relocated simply so that their parents may terminate their relationship.

In no other area of Family Law does a terminating state refuse to terminate a marriage because it does not comply with the marriage laws of that State. Suppose , for example, persons were married at age 16;the legally permitted age under the law of the State of origin of the marriage, but not permitted in the terminating state. Would or should the terminating State refuse jurisdiction to terminate the marriage because it does not comport with it us marriage statutes? Of course not.

From this author's perspective, it is time for our Courts and Legislatures, and most importantly our Family Courts as Courts of Equity, to give Equal Protection to all of our citizens, not simply those of heterosexual orientation.

Full post as published by New Jersey Law Blog on June 16, 2008 (boomark / email).