Nearly a quarter century ago, Denmark broke down barriers to become the first nation to legally recognize same-sex couples through registered partnerships. Same- sex marriage Is currently legally recognized nationwide In eleven nations - Argentina, Belgium, Canada, Denmark, Iceland, the Netherlands, Norway, Portugal, South Africa, Spain and Sweden (The Economist, 2012). In the united States, the decision is made at the state level. After the 2012 elections, there are now nine states (Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and
Washington) and the District of Columbia who permit legally binding marriages between same-sex couples (The Economist, 2012). The Working Group, appointed by the PAP Council of Representatives, stated 'The PAP recognizes the Importance of the institution of civil marriage which confers a social status with important legal benefits, rights and privileges (PAP, 2004). " Statues and Bates (2010) surveyed couples, both homosexual and heterosexual, on what words define marriage. In the surveys, the biggest theme, with 79%, was that marriage is "contractual. Another ajar theme was the Idea of "love" as being an Important part of a marriage - almost half of the respondents agreed. Additionally In the surveys respondents were asked about their stance on same-sex marriage - over half, 55%, were against a same-sex marriage but acknowledged the loving bond that comes from the relationship. Card (2007) contends that "the laws should no more declare which durable intimate sexual unions between freely consenting adults are legitimate and which are not than it should declare which newborns are legitimate and which are not. The language of he Universal Declaration of Human Rights (1948) does not specify the genders of the partners ? "Man and women of full age, without any limitation due to race, nationality, or religion, have the right to marry and found and family. They are entitled to equal rights as to marriage, during marriage, and at its dissolution. " But with the rights and privileges of marriage also come hardships and legalities if the union wishes to be dissolved. In heterosexual marriages the solution is easy. Show residency in the state where the divorce wishes to be granted and begin the legal proceedings.
In homosexual marriages, the process Is fraught with complications. Even In states that do recognize gay marriage, gay divorce can soul be a legal mess because gay marriages aren't recognized by the federal government - or the IRS (Smith, 2011). Missouri was the first state to pass a referendum for a constitutional restriction limiting marriage to one man and one woman (Cooperate, 2004). The struggle continues with 31 states in agreement with an affirmative vote on a referendum. Additionally same-sex couples cannot get a divorce In over 80% of the nation and couples are not bound to live In the same state In which they married.
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Must the couple stay married since there is no clear avenue for dissolution? Should a state allow divorces when it does not allow marriages? What happens to the assets and dependents in a same-sex divorce? What are some precedents other countries have put into effect and could this work for the United States? This paper will address the conundrum of marriage equality at the beginning of a marriage and the limbo Same-Sex Divorce and the Legal System In 1942, the U. S. Supreme Court ruled that "marriage is one of the 'basic civil rights of man,' fundamental to our very existence and survival" (Mourn, 2012).
In landmark cases of the asses, including the watershed case of Loving v. Virginia in 1967, the court applied this line of thinking to interracial marriage and the subsequent legal acceptance nationwide, overturning a court decision held for 84 years. Almost a half century later, states are coming under the microscope with their Defense of Marriage Acts, or Dooms, which detail how each state recognizes a legal marriage and its benefits, and the relationship of a DOOM to same-sex marriage and divorce requests.
The birth of the DOOM began in Hawaii in 1991 when, in Hawaii, three same-sex peoples filed a state court civil lawsuit claiming that they were denied a marriage license based on discrimination of sex, in the case Baber v. Lenin (Thornton, 2009). While the trial court sided with the Department of Health (the department responsible for marriage licenses) the case was appealed to Hawaii's Supreme Court for further review, who eventually overturned the decision. The case sparked an interest in the federal House Committee on the Judiciary who were debating H.
R. 3396, the proposal of DOOM, and considered that the Hawaii issue was "legal assault against traditional heterosexual marriage laws. (Thornton, 2009) DOOM passed in September 1996 with two purposes - "to defend the institution of traditional heterosexual marriage" and "to protect the right of the States to formulate their own public policy regarding the legal recognition of same-sex unions, free from any federal constitutional implications that might attend the recognition of one State of the right for homosexual couples to acquire marriage licenses. (Thornton, 2009) From an outsider's perspective, it could be perceived that the federal government was supporting heterosexual marriage (and, by default, not supporting same-sex arraign) but at the same time supporting a state's ability and responsibility to make a decision on the issue. This contradictory stance was positioning the DOOM to become a conflict-builder in the coming years after adoption. In 2008, then- presidential candidate Barack Obama, when he supported a full repeal of the DOOM act, stated that "Federal law should not discriminate in any way against gay and lesbian couples, which is precisely what DOOM does" (Mourn, 2012).
Yet it is in the power of each state, not federal law, to determine what is and what not a marriage is. Some courts have asserted that they do not have subject-matter Jurisdiction over same-sex divorce (Byrne and Holcomb, 2011) while other states Justify their legal stance thusly - since they do not recognize same-sex marriage in that state, they cannot grant a subsequent same-sex divorce if the marriage in question is not recognized as legal. This unique situation is becoming commonly known as "wed- locked" (Landau, 2012).
When a same-sex former couple is wed-locked, they cannot divide property and debt legally, have child custody and visitation issues, cannot marry and are deprived of psychological resolution of the former marriage. All fifty states have no-fault divorce options and cannot force couples to stay married (Brand Holcomb, 2012). Under this line of thinking, a same-sex divorce should be considered the same as a heterosexual divorce but there are vast differences and asserting that there were three reasons that led into the final decision that the "categorical denial of access to divorce is constitutionally suspect" (Byrne and Holcomb, 2012).
The first reason is that couples who wish for a same-sex divorce are being denied access to courts. Secondly, couples cannot dissolve their legal marriage because of a court's monopoly on divorce (since marriage is a legal proceeding, a dissolution of such is also a legal proceeding). Lastly, since the same-sex former couple cannot be granted a legal divorce they therefore cannot remarry, which is Bodied acknowledged is a fundamental right. States have equal protection jurisprudence, or the requirement that people who are in a similar situation will be treated similarly (Byrne and Holcomb, 2012).
So if a Judge denies a same-sex divorce, he is making a decision against constitutional rights that are protected. It is only institutional if the situation passes an equal protection review (Byrne and Holcomb, 2012). Prohibiting a same-sex divorce violates both substantive due process and equal protection under Bodied. Currently only the state of Georgia explicitly states in its constitutional Defense of Marriage Acts that it has no Jurisprudence in same-sex divorces (Byrne and Holcomb, 2011).
Therefore the other 49 states should have subject matter Jurisdiction over same-sex divorces - but not all acknowledge as such. Over two decades ago a company began called Collaborative Practices, to offer an alternative to legal divorce for same-sex couples (Sacking, 2006). The company works together with the couple and a team of family law specialists, psychologists, financial advisors and more to work with the separating couples on non-controversial options to their ending relationship.
Marietta Goldenness, a Collaborative attorney who specializes in LEGIT family law, states "to have to rely on a court system that doesn't protect your rights or legally recognize your identity is scary - very scary' (Sacking, 2006). The company currently practices in ten countries and in some U. S. States where a same-sex legal divorce is a hindrance. The problem with a state's Defense of Marriage Acts is that it was created for protecting marriage rights, and not necessarily the right to divorce. Yet a court does not need to recognize a marriage in order to grant the relief of a divorce.
Divorce is not a "benefit of marriage" because a divorce is not asking for the rights and privileges of marriage - instead it is asking for the removal of such. Currently same-sex couples cannot be married in one state and presume that they'll receive or demand the marriage and divorce rights in their home state. There is no language in any state's DOOM that explicitly states that it provides relief of a same-sex divorce. Yet there is also no divorce statute that asserts that the marriage needs to be valid in the state in which the divorcing couple files. Byrne, 2012). Stark Jokes that "gay divorce will lead to a change in the meaning of 'gay divorcee'. No longer will it mean fun and carefree. Instead gay divorcees will be grouped together with the straight people who [hopefully] escaped bad marriages. (Stark, 2011)" Couples who are unable to divorce under these DOOM restrictions and limitations may also have their income h/she earns, while searching to secure a divorce, be regarded as "marital income", which in some states have strict guidelines n how to divide it.
A same-sex marriage partner may be forced to split his/her income earned months or years after the initial separation. Some states, such as Pennsylvania, have the authority to issue a declaration to void a marriage (Mourn, marriage with copious amounts of income, savings, real estate or possessions, might go about this option. Others, who feel as if a declaration negates the realness of a marriage (similar to an annulment) and who have material and immaterial goods shared throughout their relationship, may view the declaration as taking away each ember's marital rights to the other.
If the marriage wasn't real in the court's eyes, then the division of property cannot exist. Yet courts regularly provide property division, custody orders and spousal support to same-sex couples (Byrne, 2012), so why can courts not grant a legal divorce or separation as well? An additional problem is that there is no guarantee that a declaration from one state will be upheld in another state that has a different standpoint on same-sex marriage and divorce. In contrast , all Nordic countries now have the term 'registered partnership' to define a same-sex marriage.
These registered partnerships are not part of the Marriage Act. Anchorperson, Knack, Asserted and Wooden-Faker(2006) states that "one reason was purely pragmatic, as it was easier to introduce a new law than to alter the existing one". Another argument presented in the debate before Norwegian law was passed, was a fear that modifying the existing marriage code might be perceived as a threat towards marriage as a social institution and its unique position on society' (Anderson et al, 2006).
However couldn't this be seen as a cry of support for heterosexual marriages if they are the standard for the social institution? Registered partnerships are given the hazy veil of marriage but not the symbolic Justifications. Yet where Norway registered partnerships stand out from U. S. 's same-sex marriages is the ease of the dissolution. Ending the relationship is very similar to the process of conferring the relationship. One, or both, partners file for a separation license and must be separated for at least one year before filing for divorce.
Tax laws are also more lenient with the addition of four key statues - registered partner, separated partner, divorced partner and surviving partner. In comparison, in 2003 Canada's Divorce Act stipulated that legal separation would only be recognized as between "a man or women who are married to each other" (Hays, 2004). That changed in 2005 and again in 2012 with an amendment to the Civil Marriage Act with Bill C-32 (House of Commons of Canada, 2012). Bill C-32 is specifically for divorce of non-resident spouses.
The former spouses must be living separate for at least one year before a couple can seek a divorce as well as be residing in a state (or country) "where a divorce cannot be granted because that state does not recognize the Aladdin of the marriage" (House of Commons of Canada, 2012 Another issue brought forth by Afar is what does it really mean to be a "man", a "woman" or "opposite sex" in the legal system? (Afar, 2010) He questions what happens to the status of transgender people who legally change their identifying documents from "man" to "women" after a sex change, etc.
If a former male, now a legal woman, enters into a marriage and subsequent divorce with a male, what rights does the transgender person have in the divorce? Which matters more - the way a person was physically born or the body parts a person now possesses? The U. S. Supreme Court will hear challenges to the federal Defense of Marriage Act and Californians Proposition 8 ban this year (Grossman, 2013). Rulings in those cases, likely by late federal benefits and protections as opposite-sex married couples and whether a state can ban gay marriage. If the U. S.
Supreme Court redefines legal marriage, a state that recognizes same-sex marriage might have to recognize a declaration of judgment from a non-recognizing state as terminating the marriage effectively, and vice versa. Also, redefining legal marriage will also affect the legal rights of parents and the definition off parent. Same-Sex Divorce and Children With same-sex commitment ceremonies, marriages, separations and attempts at divorce running parallel to those of heterosexual couples, one may ask - what does it really mean in this modern age to be a parent?
Grossman (2013) visualizes: The Florida Supreme Court recently heard arguments in the case of a lesbian couple in which one of the women's eggs, fertilized with donor sperm and nurtured in vitro, was implanted in the birth mother/partner. The egg donor parent could not adopt their baby because Florida does not recognize same-sex marriages or permit same- sex adoption. Nine years later, the birth mother took off with their daughter. The original Judge in their custody battle granted custody to the birth mother. An appeals court overturned that Judgment, granting parental rights to both women.
If the donor mom's rights are upheld by the state supreme court, the decision could redefine Florida law. Which of the mothers has more claim to the child - the one whose egg was used or the one who nurtured and gave birth to the child? Additionally, what assurance do the mothers have that their insurance company Coin policy if available, or separate) will carry the dependent of same-sex partners on the policy? Card (2007) writes that the denial of auxiliary benefits such as this is both an injustice and an arbitrary unjustified inequality to the dependent .
In the absence of legal protections, lesbian co-mothers, if they are not the biological mother, are likely to lose access to the child they helped to parent (Abram, 1999). What happens to the child of two (or one, if one partner carried the child) non-biological parents during a divorce? If a presumed parent, one who has been in the child's life on an ongoing basis, is not legally recognized as the parent, due to the laws of same-sex marriage ND divorce in that state, does the parent have legal parental rights or visitation to the child?
Allen (2007) relates a personal experience of ambiguous relationship. When one of the partners ends the relationship, all the so-called legal safeguards are null and void except property rights, such as home ownership) because the law, the society, and the culture define former LEGIT partners and their children as legal strangers (Allen, 2007). The biological child of one partner and the biological child of the other partner (already born when the relationship began) do not have contact anymore since the family unit is now two separate family units.
Thus when a same- sex marriage ends, there is cause for thought to gain the same legal benefits as a heterosexual divorce in terms of child custody and visitation rights. Summary The stance on marriage issues is currently both a unifier and a divider in political, social, economic and religious platforms. The same holds true for divorce and the roadblocks in obtaining a legal divorce - including vague laws, the interpretation of laws or code and child custody or visitation rights.
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