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Back to Section One | Back to Arts & Entertainment
posted Friday, May 25, 2012 - Volume 40 Issue 21
Maryland court rules for divorce equality
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Maryland court rules for divorce equality

by Mike Andrew - SGN Staff Writer

Maryland's highest court has decided that same-sex couples married in another state may be divorced in Maryland, even though the state law permitting same-sex marriage has not yet taken effect.

The unanimous 7-0 ruling by the Maryland Court of Appeals upholds the principle of reciprocity or comity, under which states agree to recognize legal actions taken by other states.

'A valid out-of-state same-sex marriage should be treated by Maryland courts as worthy of divorce, according to the applicable statues, reported cases, and court rules of this state,' the court said in its 21-page ruling.

Maryland passed a marriage equality law in February and Gov. Martin O'Malley signed it into law on March 1. It is scheduled to take effect January 1, 2013, unless voters repeal it in November.

However, when one of a Lesbian couple filed for divorce in Prince George's County two years ago, Judge A. Michael Chapdelaine refused to grant it, on the grounds that the marriage was 'not valid' and 'contrary to the public policy of Maryland.'

The couple had been married in California during the brief period when same-sex marriages were legal there, before the passage of Prop 8. They subsequently separated and one moved to Maryland, where she filed for divorce. The divorce was not contested.

The Maryland Court of Appeals disagreed with Judge Chapdelaine's ruling, noting that in the past Maryland had accepted the validity of marriages that would not be legal under its own laws, including an uncle-niece marriage from Rhode Island. Such a marriage, at the time, was a misdemeanor subject to a fine in Maryland.

'Under the principles of the doctrine of comity applied in our State, Maryland courts will withhold recognition of a valid foreign marriage only if that marriage is 'repugnant' to state public policy,' the high court wrote.

'This threshold, a high bar, has not been met yet; e.g., no still viable decision by this Court has deemed a valid foreign marriage to be 'repugnant,' despite being void or punishable as a misdemeanor or more serious crime were it performed in Maryland. The present case will be treated no differently.'

The principle of comity is standard legal practice in the United States, but when applied to same-sex couples, it has become controversial.

Courts in Nebraska, Rhode Island, Pennsylvania, and Texas have refused to grant divorces to same-sex couples on the grounds that doing so would implicitly recognize same-sex marriages.

Responding to those cases, California and the District of Columbia recently passed laws allowing same-sex couples married in their jurisdictions to divorce there if their home state will not annul or dissolve their marriage.

The governor of Rhode Island issued an executive order on May 14 recognizing the validity of same-sex marriages performed in other jurisdictions, which presumably would provide a legal basis for that state's courts to dissolve such marriages.

If Washington's newly passed Marriage Equality Act is not overturned by voters in November, then same-sex couples will be able to get divorced as well as married in this state.

If the law does not survive the election, then the state's existing domestic partnership laws will continue to apply - including recognition of same-sex marriages performed elsewhere as if they were in-state domestic partnerships. Absent new legislation, laws governing dissolution of domestic partnerships would then control dissolution of those relationships.

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