Divorce: A Missing Piece of the Gay Marriage Debate

Not providing same-sex couples with the legal structure of divorce is not only unfair and unjust, it is bad social policy with negative implications for LGBT people as well as for everyone else.
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On May 15, the California Supreme Court ruled that same-sex marriage is legal there. The same-sex marriage issue in California is not settled as there will be a voter referendum in November on amending that state's constitution to define marriage as between one man and one woman, thereby nullifying the court's recent decision. At the heart of the same-sex marriage debate are questions about equality, fairness, and the role of marriage. Thus far, the debate has ignored one of the most legally significant benefits of marriage, namely, divorce. Although few people are thinking about it when they get married, divorce is one of the most important benefits of marriage. Divorce is an encompassing and expedited legal procedure for resolving disputes between soon-to-be former spouses. Further, divorce is a benefit of marriage that is frequently utilized: approximately fifty percent of first-time marriages in the United States end in divorce.

When two people are married, they become legally, economically, socially, and emotionally intertwined in an assortment of ways. Divorce disentangles the married couple and settles unresolved issues between them such as finances, property, parenting, and future support--hopefully, once and for all. Divorce helps people to get on with their lives when a significant relationship ends. The default rules and standardized procedures of divorce of each state create a framework that helps many married couples to unwind their relationship without nasty trials, while providing protections for the less powerful person in the couple. Although we typically think of divorces as nasty, the nastiness is more the result of the collapse of a publically-declared relationship than of the legal structure designed to facilitate the end of such relationships and give the former spouses a fresh start.

Same-sex couples in jurisdictions that do not allow for the legal recognition of their relationships lack the benefit of a streamlined and centralized legal procedure for getting out of relationships that come to an end. Such same-sex couples can be as intertwined financially, socially, and emotionally as different-sex couples; they often live together, share living expenses, pool their finances, own property together, raise children together, and meld their families and friends. When same-sex relationships come to an end, unwinding them can be a huge mess. Of course, the end of any close relationship can be messy. But the mess is potentially even bigger for same-sex couples who are not married (or not in similar legal relationships such as civil unions) because there is no family or divorce court where they can go and no clear default rules that provide a background for negotiations.

Consider two people of the same sex not in a legally-recognized relationship but who have been together a long time, own property together, live together, and have provided mutual support for each other. Since their relationship is not recognized, they cannot easily resolve the apparently irreconcilable disputes that emerge at the end of their relationship. To get the state's help in settling such disputes, they might have to file legal complaints against each other in several different courts, especially if they raise children together. In contrast, a married couple could resolve these issues in a single court. While some divorces take a long time, many are handled quickly and easily, in part because of established divorce procedures and practices. In most jurisdictions, same-sex couples cannot take advantage of divorce. (Unmarried different-sex couples cannot get divorced either, but they had the choice to get married and opted not to marry.)

Not providing same-sex couples with the legal structure of divorce is not only unfair and unjust, it is bad social policy with negative implications for LGBT people as well as for everyone else. Couples act together in the legal realm, even when they do not have legally recognized relationships. They buy or rent apartments together down the hall from you, they are your friends or relatives, they send their children to the same school as you do, they work for the same employers you do. The end of a person's primary relationship affects others around that person. But when it ends and there are no established and simplified procedures to help the disentangling of a complicated relationship, tying up all the loose ends becomes unnecessarily complicated, drawn out, and taxing. This process affects not just the couple breaking up, but the people around them including, most importantly, the people they take care of, and the people who care about them. The lack of a legal framework for those getting out of same-sex relationships that are not legally recognized is bad for society at large.

Oddly, then, one of the most dramatic injustices and inefficiencies of not giving legal recognition to same-sex couples is that it withholds from such couples an important and humane tool for easing the end of such relationships. Divorce is one of the many reasons we should support full relationship recognition for same-sex couples. As legislators and voters--both inside and outside of in California--reflect on marriage and equality, they should be reminded of the unfairness of not allowing same-sex couples to divorce.