New York Court Grants First Lesbian Divorce

April 3, 2009

lesbian-same-sex-marriageOur office practices a great deal of matrimonial law, so it is with great interest that we read about a Broome County New York Supreme Court justice who  just granted Lauren Wells-Weiss and Shari Weiss (married in Canada) a divorce.  By doing so, it implicitly also recognized the fact that they were initially married, the first time this has happened in the marriage or divorce context in New York.

The New York Surrogate’s Court has already recognized a same-sex marriage performed in Canada for the purpose of an Administration proceeding, as reported on this site in February.

I am frankly not surprised by the recognition of Canadian same-sex marriages for the purpose of granting a divorce.  That issue is not fundamentally different from the one considered by the Surrogate’s Court. And in the recent case of Lewis v. NYS Dept. of Civil Service, 872 NYS 2d 578 (3d Dept 2009), the Appellate Division held that marriages validly performed in another jurisdiction, unless void as a matter of public policy or specifically excluded by New York’s Domestic Relations law, are recognized as valid by New York State as well.

The Court held that New York’s recognition of validly-performed foreign jurisdiction same-sex marriages do not fall into either exception to New York’s general recognition of out-of-state marriages. It pointed out that NY’s Domestic Relations law does not specifically invalidate foreign same-sex marriages. The court also clarified that  New York has only invalidated a few types of marriages based on public policy, including incestuous or  polygamous marriages, and marriages where one party was under the age of consent.

That being the case, it comes as no surprise that a situation has arisen in which a New York court has had to decide whether it may grant a divorce in the case of a Canadian same-sex marriage, a new application of an emerging pattern of foreign same-sex marriage recognition in New York.

Picture courtesy of NevadaThunder.com.

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