What’s Divorce Got To Do With It?

Today’s post is contributed by Elizabeth Victor, who is currently a visiting faculty member in the Department of Philosophy.  Dr. Victor’s work is often concerned with the ways that large associations, particularly those in the business world, shape the ethics of the larger culture.  In this post, she thinks about the ways that the debate about same-sex marriage often has not included a consideration of divorce, and she argues that any ethical argument for same-sex marriage must also account for its dissolution.  

Many feminist theorists and members of the LGBT community are familiar with the arguments in support of marriage equality. The history of striving for marriage equality is, in part, about the privileges that come with the recognition of being married. These privileges include, but are not limited to, the ability to visit your partner in the hospital, to act as a legal proxy, have legally recognized parental access to children you have in common, the ability to inherit or access survivors benefits in the case of the death of your partner, etc. With the focus on the recognition of same-sex marriage, little attention has been paid to the right to exit the marriage contract; that is, same-sex divorce. Imagine the following scenario:  A same-sex couple goes out of state (or out of the country) to get married, now legally married they return to their place of residence that does not recognize their marriage, and after a time the marriage fails (as approximately half of all marriages do). However, the couple is not able to file for divorce because the marriage is not recognized in their place of residence. This scenario is similar to the case recently brought before the Ontario Superior Court of Justice earlier this year. Two legal issues make same-sex divorce significantly more complicated than its cross-sexed counterpart. First, the requirements for marriage and divorce are different from one another. Second, there is a lack of portability of same-sex marriage rights. When I looked into these issues, it became clear to me that same-sex divorce poses importantly different questions from those arising from the same-sex marriage debate. Like marriage, the laws governing divorce, or the dissolution of the marriage contract, change from state to state. Typically, the restrictions for who may marry whom are significantly more lenient than those governing divorce. Add to this the fact that cross-sexed unions benefit from the fact that states recognize the unions performed in other places. This means that if I marry someone of the opposite sex in Florida, the state of Illinois will recognize it. Likewise, if I marry someone of the opposite sex in Ottawa, Canada, Illinois will recognize that union as well. In contrast, same-sex couples do not have a portable right of marriage, which entails that they also have no legal right to exit this contract. Unlike an application for a marriage license, which can be obtained in other jurisdictions without lengthy residency requirements, a petition for divorce can only be filed in a person’s state of residency, and this is for good reason. In the case of divorce, property may need to be divided, custody determined, etc. Nevertheless, what happens when same-sex couples split up when residing in places that do not recognize their unions? Can they just ignore the unrecognized marriage?  The Florida Domestic Partnership Law Blog, from which the image above is borrowed, points out a few reasons why they should not do so when it poses the following questions:

  • What happens when DOMA is repealed and that out of state marriage, still valid, is suddenly recognized by all 50 states? What if this is 10 years after you break up?
  • What do you say on medical insurance forms when they ask you your marriage status? What if, down the road, insurance companies are allowed to sell insurance across states and you are dealing with an insurance company from a gay marriage state?
  • What happens if, two years after you break up, you meet a man or woman you want to marry? Anywhere that will allow the marriage will also recognize your old one.

Aside from these pragmatic questions, we can ask the deeper philosophical and social justice questions regarding what this means to the person who is trying to make sense of his or her identity when forced into this married-yet-not state of limbo. What kinds of harm might result from the State depriving someone of the right to a divorce? In liberal democracies we value the right of citizens to exercise their autonomy. When we enter into contracts, the State recognizes our agency by upholding the contractual obligations and duties on the parts of the members who freely entered into it, even as we move from place to place. In addition, the right to enter a contract entails a right to exit or terminate the contract. Yet, in the case of same-sex couples seeking divorce, this is precisely what is denied.   We need to recognize that the marriage contract is not like a contract to supply a restaurant with goods. Rather, in connection with one’s marital status it defines how others in society treat you. There is a difference not only in address (Miss/Mrs.), but also in the normative expectations and judgments made about one’s behavior (such as whether or not one is have a socially acceptable night on the town or being an adulterer). One’s marital status, like one’s sexual identity, is a constitutive part of our lives and determines how we constitute our practical identity. That is why I think that when the right to exit this contract is thwarted by unduly burdensome requirements, such as moving to another state and establishing residency (which often takes a full year), we should see this as an injustice. The harms caused to the person deprived of the right to exit the marriage contract are not purely monetary or merely time-consuming. Rather, the state of limbo the individual finds herself in serves as a constant reminder that in the eyes of the law she is not considered a fully autonomous citizen. Moreover, one can only imagine the psychological unrest one might experience when being reminded of their relative lack of liberty to enter a new marriage contract, or consider the fact that in some jurisdictions one’s not-ex-spouse still has a say regarding certain issues. For example, when a person might visit the District of Columbia, New York, Connecticut, or Toronto (places where same-sex marriage is recognized), if she were to be involved in a car accident or otherwise become incapacitated, the not-ex-spouse has legal proxy to make healthcare decisions. I can only imagine how such reminders might hinder that person’s ability to move on with his or her life. By turning the focus to how the law treats people, we begin to see that the law is not only legally hindering acitizen’s agency. It is doing something much more damaging: Through this kind of treatment, the State is impairing the freedom to dissolve a contract, and this greatly determines the degree to which a citizen’s might constitute their practical identity.

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