Sunday, February 08, 2009

New Jersey Court Permits Divorce of Same Sex Couple, Married in Canada

Canadian Press reports, via CTV, on a a New Jersey Superior Court's groundbreaking decison Friday, permitting the divorce of a lesbian couple that had been married in Victoria, B.C.:

TRENTON, N.J. -- Gay marriages performed elsewhere are recognized in New Jersey for the purpose of divorce, said a ruling Friday by a judge presiding over a case in which a lesbian couple married in Canada are seeking to split.

The wider implications weren't immediately clear but Superior Court Judge Mary Jacobson said New Jersey has a long history of recognizing marriages that are valid where they were performed.

...The state attorney general's office had opposed the request, the first of its kind in the state, and was seeking to have the couple's marriage dissolved as if it were a civil union. Officials have not said whether the state will seek an appeal.

...Courts in a handful of states, including New York, Oklahoma, Rhode Island and Texas, have wrestled with the question in the last few years. In most cases, judges have ruled the state would not grant the divorces because the states do not recognize same-sex marriage.

There have been a flood of recent decisions in U.S. courts regarding same-sex marriages and unions:

We wrote last week on a New York probate court's decision that recognized a Canadian same-sex marriage in the context of estate distribution.

Volokh also had two articles this week, highighting:

  • a decision of the U.S. Ninth Circuit Court of Appeal holding that a denial of government employment benefits to same-sex spouses pursuant to the Defence of Marriage Act is unconstitutional. The Defense of Marriage Act, passed in 1996, denies federal recognition of state marriages to same-sex couples.
  • a decision of the State of New York Supreme Court, Appellate Division dismissing a challenge to a determination by the State's Department of Civil Service to "recognize the parties to a same-sex marriage as spouses if their marriage were valid in the jurisdiction where it was solemnized, thereby allowing such spouses of state employees access to the benefits provided under the New York State Health Insurance Program."

On the political front, the New York Times reports today that no legislation to legalize gay marriage in New York State is likely in 2009:

New York Senate Majority Leader Malcolm A. Smith said that he did not believe legislation to legalize marriage between same-sex couples had enough support to become law in New York this year.

See: No Gay Marriage Bill This Year.

- Garry J. Wise, Cancun

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