SAME-SEX DIVORCE IN THE CONFLICT OF LAWS

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Abstract:

Same-sex marriage is currently the focus of public attention and debate around the world. Yet for all the furor over whether same-sex marriage should be permitted, the matter of providing a dissolution procedure for these relationships has been neglected. Even where such provisions have been included in statutes creating civil unions or domestic partnerships as a matter of internal family law, none have examined the conflict of laws aspects of the procedure and none have discussed same-sex divorce in the conflict of laws. Part one of this paper examines the conflict of laws issues related to divorce following same-sex marriage both in the international context and in the interstate and interprovincial setting as applied to Canada and the United States. It notes that the major issues involve questions of jurisdiction to grant a divorce and of the recognition and enforcement elsewhere of divorce judgments, rather than choice of law. Part Two examines the conflict of laws aspects of the dissolution of civil unions and domestic partnerships within the United States. Public policy issues applicable to both parts of the paper are raised in the United States in the context of the impact of the federal Defense of Marriage Act (DOMA) and the state mini-DOMAs on the federal constitutional requirement that Full Faith and Credit be given to the public acts, records, and judicial proceedings of other states. The paper suggests that countries which allow same-sex marriage or marriage-like relationships should confer jurisdiction upon their courts to permit couples who take advantage of those laws to be divorced there without regard to a showing of domicile, ordinary residence, or lengthy periods of physical presence. It further suggests that the couple's home state should permit same-sex divorce as an incident of a foreign state's same-sex marriage without regard to whether the home state itself would have allowed the couple to marry or would recognise their marriage as valid. Finally, the paper suggests that a same-sex divorce judgment can be recognised and enforced without violating a forum's contrary public policy invalidating such marriages or marriage-like relationships.
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  • Until 2007 the King's Law Journal was known as the King's College Law Journal. It was established in 1990 as a legal periodical publishing scholarly and authoritative Articles, Notes and Reports on legal issues of current importance to both academic research and legal practice. It has a national and international readership, and publishes refereed contributions from authors across the United Kingdom, from continental Europe and further afield (particularly Commonwealth countries and USA). The journal includes a Reviews section containing critical notices of recently published books.
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