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Gay couples trapped by divorce laws, claims US organisation

Gay marriage is a regular topic on this blog and quite rightly so, I believe. Same sex marriage has risen to the top of the international family law agenda like few other issues in recent years. Not so long ago, it was a rarely discussed pipedream – now we are well on are way to gay marriage becoming legal in France and England. Meanwhile, the US Solicitor General has personally intervened in one of several gay rights cases currently being considered by the country’s Supreme Court.

Fewer and fewer people now associate gay marriage with scandal and shock and I really don’t think it will be very long before legal recognitions is the rule rather than the exception in most of the western world. Even the most diehard social conservatives are have begun to recognise that society benefits from equality of opportunity and the commitments inherent in marriage.

So what’s next? D-I-V-O-R-C-E of course. As increasing numbers of gay people tie the knot around the world, a proportion will inevitably discover they aren’t as suited as they once thought. We have already seen the launch of a French website designed to cater for divorcing gay couples and there will certainly be many more of these as time rolls on.

But life can be tough, at times, for the pioneers of any social change.

In the United States, that great bubbling, unsteady cauldron of global influence, gay marriage is currently only recognised in 11 of 50 states. It can be performed in nine –  Connecticut, Iowa, Maine, Maryland, Massachusetts, New Hampshire, New York, Vermont and Washington, while same sex unions performed elsewhere are recognised in two other states – Rhode Island  and California.

That means two things. Firstly, gay marriage still has some distance to travel in theUS, and secondly, gay couples who pioneered same sex marriage will need to become pioneers once again if they wish to divorce. The spotty patchwork of recognition across the US creates some real and uncomfortable challenges for same sex couples seeking divorce

New York magazine has just taken a long and detailed look at some of these difficulties. In From ‘I Do’ To ‘I’m Done’ by Jesse Green, we learn that most states require couples to be officially resident there before they can divorce under their jurisdiction and status as a resident may take as long as a year to obtain. But what happens if the state the couple is living in at the time does not recognise gay marriage? If so, they will not be able to divorce there either. So do they then relocate to an entirely different state and live there for up for months purely in order to get divorced?

An uncomfortable and impractical dilemma. The article quotes Susan Sommer of gay rights legal organization Lambda Legal: “[This situation] gives wedlock a whole new meaning. They’re trapped. And it has terrible and profound consequences for them.”

She believes some unhappily some married couples could end up committing bigamy as a result.

“…[L]et’s say you and your spouse live in Virginia but got married in New York. You split up but don’t get divorced, because you can’t. One of you steps foot in D.C. because you commute there for work. While you’re in D.C. you are married to that other person even if you haven’t spoken in years. And let’s say you’re in an accident that doesn’t allow you to make end-of-life decisions; that spouse is likely the one who has the right to make decisions for you….It’s a mess!”

A mess indeed. In time the road to divorce for same sex couples will almost certainly become smoother over there but that will not lesson the pain of the pioneers. Caution over where you live and work would seem to be the only solution for the time being – although work and personal circumstance can always pull us in directions we may not be able to choose.

Meanwhile, we await the ratification of gay marriage laws in England and Wales. Will British couples face similar dilemmas, if they, for example, marry in London and then move to Dublin?

The blog team at Stowe is a group of writers based across our family law offices who share their advice on the wellbeing and emotional aspects of divorce or separation from personal experience. As well as pieces from our family law solicitors, guest contributors also regularly contribute to share their knowledge.

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