Divorce of same-sex couples

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The extension of civil marriage, union, and domestic partnership rights to same-sex couples in various jurisdictions can raise legal issues upon dissolution of these unions that are not experienced by opposite-sex couples, especially if law of their residence or nationality does not have same-sex marriage or partnerships.

Contents

Conflict of laws

In jurisdictions where same-sex unions are not possible, also divorce or annulment is often not possible, while general conflict of law rules sometimes exclude divorce in the jurisdiction where the marriage was celebrated.

In some jurisdictions divorce is possible, even if marriage is not possible. They are listed below:

JurisdictionComment
Israel [1]

United States

Marriages and divorces in the U.S. are governed by state law, not federal law. That means that states are free to set their own rules for who is eligible for marriage (e.g., the minimum age for marrying) and establish their own rules and processes for divorce. Nonetheless, every state had a general residency requirement for divorce cases, requiring at least one of the people seeking the divorce to reside in that state. Before the federal government recognized same-sex marriages in 2013, through the Supreme Court's decision in United States v. Windsor , same-sex couples who legally married in one state could find themselves unable to divorce after relocating to another state that did not recognize their marriage as valid. That could result in the need for a costly civil lawsuit to attempt to resolve issues of property rights, and property settlements that were negotiated outside of court could potentially trigger federal gift tax requirements. [2]

Before the Supreme Court's 2015 decision in Obergefell v. Hodges , couples in same-sex marriages could generally only obtain a divorce in jurisdictions that recognized same-sex marriages. [3] When Delaware and Minnesota legalized same-sex marriage in May 2013, they passed legislation allowing non-resident couples who had legally married within the state, but who were not able to divorce in the jurisdiction where they were residing, to obtain a divorce through their courts. [4] [5] Florida legalized divorce for same sex couples as the result of a court decision [6] that followed lawsuits by couples who had legally married in other states but had not been allowed to divorce after relocating to Florida. [7] [8] [9]

After the Supreme Court's decision in Obergefell, same-sex couples could legally divorce in any U.S. state. [10] [11]

Divorce rates

Divorce rates of marriages with same-sex partners vary by nation.

Netherlands

Between 2004 and 2009, the average annual divorce rate for all homosexual marriages was almost 2% (the total rate of divorce over those five years was 11%) Also between 2004 and 2009, lesbian divorce rates were nearly double of those of gay men. [12]

In the Netherlands, slightly more marriages between women are recorded than between men: between 2006 and 2011 on average 690 and 610 per year respectively.

The lesbian divorce rate is much higher than the divorce rate between men: in the same period on average 100 women and 45 men divorced per year (i.e., Lesbian divorce rate = 14%, Gay Male divorce rate = 7%). [13]

Denmark

As of 1997, the same-sex partnership divorce rate (17 percent) was significantly lower than that of heterosexual couples in Denmark (46 percent). The vast majority of gay marriages in Denmark are male-male. Fourteen (14) percent of these end in divorce, compared to 23 percent of female-female marriages. The higher rate for lesbians, is consistent with data showing that women initiate most of the heterosexual divorces in Denmark. [14]

Norway and Sweden

A 2022 study of Norway, using data up to 2018, found that divorce rates 20 years post-marriage were 5% lower for male-male marriages compared to male-female marriages and were 29% higher for female-female marriages vs female-male marriages. [15]

Another study on short-term same-sex registered partnerships in Norway and Sweden found that divorce rates were higher for same-sex couples than opposite-sex marriages, [16] and that unions of lesbians are considerably less stable than unions of gay men. [17]

In the above study, lesbians' divorce risks were 10% higher than for gay men (Table 4).

A study of marriage dissolution rates in Sweden spanning the years 1995–2012 found that 30% of both male same-sex marriages and heterosexual marriages ended in divorce, whereas the separation rate for female same-sex marriages was 40% (their Figure 7a). [18]

United Kingdom

The divorce rate of same-sex couples within 29 months of the introduction of legally binding civil partnerships was slightly less than one percent in the United Kingdom. [19]

As of 2013, lesbian couples were twice as likely to initiate actions to end legally recognized partnerships as compared to gay men. [20] In 2016, married female couples were approximately 2.5 times more likely to divorce than male couples. [21]

According to Office for National Statistics, divorce rate of heterosexual couples is at its lowest since 1971 in England and Wales. The divorce rate for same-sex couples increased in 2016 and 2017, [21] [22] which the Office for National Statistics explained as a likely result of the fact that same-sex marriages have only been legal since 2014. [22]

United States

Massachusetts, the first U.S. state to allow same-sex marriage, doesn't track how many of the divorces in the state are between same-sex couples. [23] A 2011 study for states with available data initially reported that the dissolution rates for same-sex couples were slightly lower on average (on average, 1.1% of all same-sex couples were said to divorce each year, ranging from 0% to 1.8% in various jurisdictions) than divorce rates of different-sex couples (2% of whom divorce annually). [24] The Washington Post retracted a headline about this report, since the study had incorrectly calculated the percentage from an error in capturing when the same-sex marriages began. As a result, the corrected findings show a 2% divorce rate for same-sex couples—the same as opposite-sex couples. [25]

See also

Related Research Articles

Baker v. Vermont, 744 A.2d 864, was a lawsuit decided by Vermont Supreme Court on December 20, 1999. It was one of the first judicial affirmations of the right of same-sex couples to treatment equivalent to that afforded different-sex couples. The decision held that the state's prohibition on same-sex marriage denied rights granted by the Vermont Constitution. The court ordered the Vermont legislature to either allow same-sex marriages or implement an alternative legal mechanism according similar rights to same-sex couples.

<span class="mw-page-title-main">Civil union</span> Legal union similar to marriage

A civil union is a legally recognized arrangement similar to marriage, created primarily as a means to provide recognition in law for same-sex couples. Civil unions grant some or all of the rights of marriage.

Same-sex marriage, also known as gay marriage, is the marriage of two people of the same legal sex. As of 2024, marriage between same-sex couples is legally performed and recognized in 36 countries, with a total population of 1.5 billion people. The most recent jurisdictions to legalize same-sex marriage are Greece and Aruba and Curaçao in the Netherlands. Two more countries, Liechtenstein and Thailand, are set to begin performing same-sex marriages in January 2025.

A domestic partnership is an intimate relationship between people, usually couples, who live together and share a common domestic life but who are not married. People in domestic partnerships receive legal benefits that guarantee right of survivorship, hospital visitation, and other rights.

Same-sex marriage has been legal in the Netherlands since 1 April 2001. A bill for the legalisation of same-sex marriage was passed in the House of Representatives by 109 votes to 33 on 12 September 2000 and by the Senate by 49 votes to 26 on 19 December 2000. The law received royal assent by Queen Beatrix of the Netherlands on 21 December 2000 and took effect on 1 April 2001. The Netherlands was the first country in the world to legalize same-sex marriage. Polling suggests that a significant majority of Dutch people support the legal recognition of same-sex marriage.

<span class="mw-page-title-main">Same-sex marriage in the United States</span>

The availability of legally recognized same-sex marriage in the United States expanded from one state (Massachusetts) in 2004 to all fifty states in 2015 through various court rulings, state legislation, and direct popular votes. States each have separate marriage laws, which must adhere to rulings by the Supreme Court of the United States that recognize marriage as a fundamental right guaranteed by both the Due Process Clause and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution, as first established in the 1967 landmark civil rights case of Loving v. Virginia.

<span class="mw-page-title-main">Societal attitudes toward homosexuality</span> How societies view, stigmatize or value homosexuality

Societal attitudes toward homosexuality vary greatly across different cultures and historical periods, as do attitudes toward sexual desire, activity and relationships in general. All cultures have their own values regarding appropriate and inappropriate sexuality; some sanction same-sex love and sexuality, while others may disapprove of such activities in part. As with heterosexual behaviour, different sets of prescriptions and proscriptions may be given to individuals according to their gender, age, social status or social class.

Civil union has been legal in New Zealand since 26 April 2005. The Civil Union Act 2004 to establish the institution of civil union for same-sex and opposite-sex couples was passed by the Parliament on 9 December 2004. The Act has been described as very similar to the Marriage Act 1955 with references to "marriage" replaced by "civil union". A companion bill, the Relationships Act, was passed shortly thereafter on 15 March 2005, to remove discriminatory provisions on the basis of relationship status from a range of statutes and regulations. As a result of these bills, all couples in New Zealand, whether married, in a civil union, or in a de facto partnership, now generally enjoy the same rights and undertake the same obligations. These rights extend to immigration, next-of-kin status, social welfare, matrimonial property and other areas. Non-married couples are not however permitted to adopt children, although people in non-marital relationships can adopt as individuals.

<span class="mw-page-title-main">Legal status of same-sex marriage</span>

The legal status of same-sex marriage has changed in recent years in numerous jurisdictions around the world. The current trends and consensus of political authorities and religions throughout the world are summarized in this article.

<span class="mw-page-title-main">Same-sex parenting</span> Parenting of children by same-sex couples

Same-sex parenting is the parenting of children by same-sex couples generally consisting of gays or lesbians who are often in civil partnerships, domestic partnerships, civil unions, or same-sex marriages.

Same-sex marriage has been legal in Florida since January 6, 2015, as a result of a ruling in Brenner v. Scott from the U.S. District Court for the Northern District of Florida. The court ruled the state's same-sex marriage ban unconstitutional on August 21, 2014. The order was stayed temporarily. State attempts at extending the stay failed, with the U.S. Supreme Court denying further extension on December 19, 2014. In addition, a state court ruling in Pareto v. Ruvin allowed same-sex couples to obtain marriage licenses in Miami-Dade County on the afternoon of January 5, 2015. In another state case challenging the state's denial of marriage rights to same-sex couples, a Monroe County court in Huntsman v. Heavilin stayed enforcement of its decision pending appeal and the stay expired on January 6, 2015. Florida was the 35th U.S. state to legalize same-sex marriage.

<span class="mw-page-title-main">Same-sex relationship</span> Romantic or sexual relationship between people of the same sex

A same-sex relationship is a romantic or sexual relationship between people of the same sex. Same-sex marriage refers to the institutionalized recognition of such relationships in the form of a marriage; civil unions may exist in countries where same-sex marriage does not.

<span class="mw-page-title-main">LGBT rights in Hong Kong</span>

Lesbian, gay, bisexual, and transgender (LGBTQ) people in Hong Kong may face legal challenges not experienced by non-LGBT residents.

Same-sex marriage has been legally recognized in Wyoming since October 21, 2014. The U.S. state of Wyoming had previously prohibited state recognition of same-sex marriages by statute since 1977 and had enacted a more explicit ban in 2003. An attempt to enact legislation recognizing domestic partnerships as an alternative to marriage for same-sex couples failed in 2013. On October 17, 2014, a federal district court found the state's ban on same-sex marriage unconstitutional. Its ruling took effect on October 21 when state officials notified the court that they would not appeal the decision.

Same-sex marriage has been legally recognized in Nevada since October 9, 2014, when a federal district court judge issued an injunction against enforcement of Nevada's same-sex marriage ban, acting on order from the Ninth Circuit Court of Appeals. A unanimous three-judge panel of the Ninth Circuit had ruled two days earlier that the state's ban on same-sex marriage was unconstitutional. Same-sex marriage was previously banned by an amendment to the Constitution of Nevada approved in 2002. The statutory and constitutional bans were repealed in 2017 and 2020, respectively.

<span class="mw-page-title-main">Same-sex marriage and the family</span>

Concerns regarding same-sex marriage and the family are at the forefront of the controversies over legalization of same-sex marriage. In the United States, about 292,000 children are being raised in the households of same-sex couples. Concern for these children and others to come are the basis for both opposition to and support for marriage for LGBTQ couples.

<span class="mw-page-title-main">LGBTQ rights in Hawaii</span>

Lesbian, gay, bisexual, transgender, and queer (LGBTQ) people in the U.S. state of Hawaii enjoy the same rights as non-LGBTQ people. Same-sex sexual activity has been legal since 1973; Hawaii being one of the first six states to legalize it. In 1993, a ruling by the Hawaiʻi Supreme Court made Hawaii the first state to consider legalizing same-sex marriage. Following the approval of the Hawaii Marriage Equality Act in November 2013, same-sex couples have been allowed to marry on the islands. Additionally, Hawaii law prohibits discrimination on the basis of both sexual orientation and gender identity, and the use of conversion therapy on minors has been banned since July 2018. Gay and lesbian couples enjoy the same rights, benefits and treatment as opposite-sex couples, including the right to marry and adopt.

The topic of same-sex unions and military service concerns the government treatment or recognition of same-sex unions who may consist of at least one servicemember of a nation's military.

Until 2017, laws related to LGBTQ+ couples adopting children varied by state. Some states granted full adoption rights to same-sex couples, while others banned same-sex adoption or only allowed one partner in a same-sex relationship to adopt the biological child of the other.

<span class="mw-page-title-main">LGBT rights in the Australian Capital Territory</span>

The Australian Capital Territory (ACT) is one of Australia's leading jurisdictions with respect to the rights of lesbian, gay, bisexual, and transgender (LGBT) people. The ACT has made a number of reforms to territory law designed to prevent discrimination of LGBTQ people; it was the only state or territory jurisdiction in Australia to pass a law for same-sex marriage, which was later overturned by the High Court of Australia. The Australian Capital Territory, Victoria, Queensland and both South Australia and New South Wales representing a population of 85% on Australia - explicitly ban conversion therapy practices within their jurisdictions by recent legislation enacted. The ACT's laws also apply to the smaller Jervis Bay Territory.

References

  1. ↑ Lior, Ilan (3 December 2012). "Court grants divorce to gay couple for first time in Israeli history". Haaretz.com. Retrieved 5 April 2014.
  2. ↑ Ellis, Blake (13 May 2013). "The high cost of same-sex divorce". CNN Money. Retrieved 21 May 2013.
  3. ↑ "Tips on Avoiding Same-Sex Divorce Complications". The Huffington Post . 13 May 2013. Retrieved 15 May 2013.
  4. ↑ "House Bill 75, Sec. 7". Delaware Legislature. Retrieved 12 May 2013.
  5. ↑ Minnesota Legislature. "Senate File 925, Sec. 7". Office of the Revisor of Statutes. Retrieved 12 May 2013.
  6. ↑ Silvestrini, Elaine (2 June 2015). "Lesbian couple in Tampa gets court OK to divorce". Orlando Sentinel. Tampa Tribune. Retrieved 30 May 2018.
  7. ↑ Anton, Leonora (24 March 2014). "Tampa couple's divorce could challenge same-sex marriage ban". Tampa Bay Times. Retrieved 12 April 2014.
  8. ↑ Cordover, Adam (16 August 2014). "Florida Bar Family Law Section Moves to File Brief in Same Sex Divorce Appeal". ABC Family Law Blog. Retrieved 16 August 2014.
  9. ↑ Silvestrini, Elaine (27 April 2015). "Tampa lesbian couple still trying to get legally divorced". Tampa Tribune. Archived from the original on 12 June 2018. Retrieved 30 May 2018.
  10. ↑ Ellis, Lindsay (14 August 2015). "Supreme Court's Gay-Marriage Ruling Allows Something Else: Gay Divorce". Wall Street Journal. ISSN   0099-9660 . Retrieved 5 March 2021.
  11. ↑ O'Brien, Sarah (13 November 2017). "Same-sex divorce poses complications for some splitting couples". CNBC. Retrieved 27 July 2019.
  12. ↑ EL. "Marital Bliss? Gender Gaps..." Gender Across Borders. Archived from the original on 27 December 2015. Retrieved 26 December 2015.
  13. ↑ "Lesbiennes scheiden veel meer dan homo's (Lesbians divorce much more than gays)". Nu.nl (in Dutch). 24 January 2012.
  14. ↑ Marian Jones (1 May 1997). "Lessons from a Gay Marriage: Despite stereotypes of gay relationships as short-lived, gay unions highlight the keys to success". Psychology Today . Retrieved 20 April 2011.
  15. ↑ Zahl-Olsen, Rune; Thuen, Frode (April 2023). "Same-sex Marriage Over 26 Years: Marriage and Divorce Trends in Rural and Urban Norway". Journal of Family History. 48 (2): 200–212. doi:10.1177/03631990221122966. hdl: 11250/3039433 . ISSN   0363-1990.
  16. ↑ Andersson, Gunnar (February 2006). "The Demographics of Same-Sex 'Marriages' in Norway and Sweden" (PDF). Demography. 43 (1): 79–98. doi: 10.1353/dem.2006.0001 . PMID   16579209.
  17. ↑ Andersson, Gunnar (February 2006). "The Demographics of Same-Sex 'Marriages' in Norway and Sweden" (PDF). Demography. 43 (1): 79–98. doi: 10.1353/dem.2006.0001 . PMID   16579209.
  18. ↑ Kolk, Martin; Andersson, Gunnar (9 January 2020). "Two Decades of Same-Sex Marriage in Sweden: A Demographic Account of Developments in Marriage, Childbearing, and Divorce". Demography. 57 (1): 147–169. doi:10.1007/s13524-019-00847-6. PMC   7052034 . PMID   31919806 . Retrieved 20 August 2022.
  19. ↑ Tony Grew (7 August 2008). "Less than 1% of civil partnerships end in 'divorce'". Pink News . Archived from the original on 11 April 2009. Retrieved 20 April 2011.
  20. ↑ "UK: Lesbian Couples Twice As Likely As Gay Men To End Civil Partnerships". The Independent. London. 8 October 2013. Retrieved 16 April 2014.
  21. 1 2 "Lesbian couples two and a half times more likely to get divorced than male same-sex couples, ONS figures reveal". The Independent. 18 October 2017.
  22. 1 2 Mohdin, Aamna (26 September 2018). "Heterosexual divorce in England and Wales is at lowest level since 1973". the Guardian. Retrieved 27 September 2018.
  23. ↑ LeBlanc, Steve (9 June 2015). "Numbers show how gay marriage has fared in Massachusetts". Mass Live. Associated Press. Retrieved 30 May 2018.
  24. ↑ Badgett, M.V. Lee; Herman, Jody L. (November 2011). Patterns of Relationship Recognition by Same-Sex Couples in the United States (PDF) (Thesis). The Williams Institute, UCLA School of Law. Archived from the original (PDF) on 3 September 2013. Retrieved 30 March 2013.
  25. ↑ "Same-sex divorce rate not as low as it seemed". The Washington Post . Retrieved 15 December 2014.

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