Maryland Supreme Court Grants Divorce To Same Sex Couple Married In California

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Jessica and Virginia got married in 2008 in California during the brief period of time that same sex marriage licenses were being issued.  Two years later Jessica filed for divorce in Maryland.  The Maryland trial court refused to grant the divorce explaining in its written order that the marriage was “not valid” and “contrary to the public policy of Maryland.”

On their respective appeals the same, Jessica and Virginia present the same single question for the consideration of the Maryland Supreme Court: “Must the Circuit Court grant a divorce to two people of the same sex who were validly married in another jurisdiction and who otherwise meet the criteria for divorce under Maryland law?” The Maryland Supreme Court says “Yes.”

Courts deciding whether a foreign marriage is valid in this State, for purposes of divorce or otherwise, employ the common law doctrine of comity, not principally our domestic marriage laws. . . .  Under the doctrine of comity, long applied in our State, Maryland courts “will give effect to laws and judicial decisions of another state or jurisdiction, not as a matter of obligation but out of deference and respect.”   When considering a foreign marriage specifically, Maryland courts follow the choice-of-law rule of lex loci celebrationis, applying the substantive law of the place where the contract of marriage was formed. . . . Generally, Maryland courts will honor foreign marriages as long as the marriage was valid in the state where performed. . . There are two exceptions to this rule: the foreign marriage may not be “repugnant” to Maryland public policy and may not be prohibited expressly by the General Assembly.

Maryland recognizes liberally foreign marriages, even those marriages that may be prohibited from being formed if conducted in this State. . .The parties’ California same-sex marriage is valid. Therefore, in order for their marriage to be valid for purposes of whether Maryland will adjudicate its dissolution, it must not run afoul of either exception to lex loci celebrationis: that is, it cannot be prohibited by statute or “repugnant” to the public policies of Maryland. For the following reasons, [Jessica]’s and [Virginia]’s entitlement, on this record, to a Maryland divorce from their California same-sex marriage is not prohibited, as a matter of law and on this record, by these exceptions. . . .

We conclude also that the parties’ same-sex marriage is not “repugnant” to Maryland “public policy,” as that term is understood properly in applying the doctrine of comity in modern times. Admittedly, “public policy” is an amorphous legal concept.  It is agreed, however, that wherever found and identified, that public policy prohibits generally conduct that injures or tends to injure the public good.  [citations omitted]

The opinion gives a very good overview of the recent thinking on same sex marriages across the country.  Please click here to read the original Port opinion.

Please be sure to visit www.hardinglaw.com, the website for the law firm of Harding & Associates, for more information on California family law.

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