Gay Marriage Can Truly Be Forever
Lesbians Denied Divorce Because Marriage Not Recognized
Oct 6, 2009
Chism, a psychiatrist and Ranzy, an educator came to Toronto in January 2005 and legally married. The province of Ontario legalized same sex marriage on June 10, 2003 when the Ontario Court of Appeal changed the definition of marriage from the union of a man and a woman to the union of two persons.
Divorce Refused on Grounds the Parties were not Legally Married
The couple separated last spring and filed for divorce in Marion County Indiana where they resided. The divorce might have been granted had a clerk not spotted the fact that both parties had female first names. When the matter came before Marion County Superior Court Commissioner James Marchal, he dismissed the divorce petition. The Indiana Code, Title 31, Article 11, Section 1 states that only a female may marry a male and only a male may marry a female. The legislation goes on to say that a same sex marriage is void in the state of Indiana even though it is legal in the jurisdiction where the marriage is solemnized.
The U.S. Defense of Marriage Act also supports Commissioner Marchal's decision. That legislation says that a state is not obligated to recognize same sex marriages that were solemnized in states that legally allow such marriages. Under both Indiana and U.S. law, judge concluded that he had no power to dissolve Chism's and Ranzy's marriage.
Judge was Sympathetic
Marchal was sympathetic to the plight of the women but said it was for Indiana lawmakers to remedy the situation, not the courts. He felt it was not inconsistent for a state that defines marriage as being between a man and a woman to dissolve a gay marriage, thus terminating a union that the state did not recognize in the first place. Marchal, in an effort to help declared the marriage "null and void" but that declaration is really no different than what the law of Indiana says.
Different Requirments for Marriage and DivorceChism and Ranzy are not the only couple to have entered into a gay marriage and found themselves unable to have it dissolved because of conflicting laws. The problem is not so much the fact that same sex marriage is legal in some jurisdictions but not in others as it is the differing requirements to marry and to divorce. For example in Ontario,any two persons can marry provided that they meet the bare legal requirements; they must be of age, cannot be within the prohibited degrees of consanguinity and affinity and must not be already legally married to another person. The parties need not have any connection to the jurisdiction in which the marriage ceremony is performed.
Divorce is a different matter. While the provinces have jurisdiction over the solemnization of marriage, marriage and divorce fall to the federal government. In order to obtain a divorce in Canada at least one of the parties must be domiciled in the country. Domicile is defined as being resident in Canada with the intention of remaining permanently or at least indefinitely. Even though the marriage was performed in Canada, the American residents are not eligible for a Canadian divorce.
Problem Needs to be AddressedCanada is by no means unique in its differing requirements for marriage and divorce. But the problem that Larissa Chism, Tara Ranzy and others face needs to be addressed. It was never the intention of jurisdictions that legalized same sex marriage to allow gays and lesbians to marry but not terminate those marriages in the same way that heterosexuals can.
As Chism and Ranzy are residents of the state of Indiana, the remedy must come from that jurisdiction. As Commissioner Marchal noted, legislation that would allow gays and lesbians to terminate their unions would not be inconsistent with the Indiana's definition of marriage. It would simply formally dissolve what Indiana doesn't recognize in the first place.
Chism and Ranzy intend to appeal the September 4 decision.
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