In the first ruling of its kind in the State of New Jersey, a Superior Court Judge has held that a same-sex couple legally married in another jurisdiction can obtain a divorce in this state. While New Jersey is not one of the few states with legalized gay marriage (only Massachusetts and Connecticut currently permit same-sex marriages), it does allow couples to enter into civil unions pursuant to N.J.S.A. 37:1-36, which was enacted following the New Jersey Supreme Court’s ruling in Lewis v. Harris, 908 A.2d 196 (2006), and is designed to provide same-sex couples with the same rights granted to married couples. As blogged last month, found here, the New Jersey Civil Union Review Commission found in its final report that civil unions do not provide the same protections as marriage.
In rendering its ruling, specifically addressing a same-sex couple legally married in Canada, the Court opined that it was acting consistently with New Jersey’s strong recognition principles dating back to the 1800s. The ruling is also significant in that it runs contrary to a State Attorney General Order declaring that New Jersey would not fully recognize same-sex marriages legally performed elsewhere, and that such marriages would be treated here as civil unions. In fact, the Attorney General’s office in this case argued that the marriage should be treated as a civil union. The Court, however, was swayed in part by the argument that Canada might not permit one of the parties to remarry without a divorce of the current marriage and that the parties could not obtain a divorce in Canada because they were not Canadian residents.
New Jersey joins New York as another state to recognize a same-sex marriage performed elsewhere for the purpose of divorce. Courts in Rhode Island, Oklahoma and Texas have ruled against such recognition. It remains to be seen whether the Attorney General’s office will appeal the ruling to the New Jersey Supreme Court.
Whether same-sex marriage in New Jersey will ever be legalized remains to be seen. What this case does is is recognize that simply treating a same-sex divorce as a civil union dissolution could prove inequitable to the parties involved under certain circumstances, such as those in this case.
Stay tuned for more updates on this issue.