Wednesday, August 10, 2016

GETTING A DIVORCE WHEN YOU NEVER HAD A MARRIAGE LICENSE



Devorah H. v Steven S. 2015 NY Slip Op 25228 Decided on July 2, 2015 Supreme Court, New York County Cooper, J :

"In the over 100 years since the enactment of DRL § 25, the way citizens marry in New York has change immeasurably. While at one time the wedding ceremony was the central element of the process, that is no longer the case; church weddings are more and more the exception rather than the rule, and the new wave of marriage ceremonies would be almost unrecognizable to earlier generations. What is key to the process is the marriage license itself. This is not only true for New York, but for the entire nation. After all, when the United States Supreme Court issued its historic decision in Obergefell v Hodges (576 US ___ [2015]) making the right to same-sex marriage the law of the land, it did so by decreeing that "States are required by the Constitution to issue licenses to same-sex couples" (emphasis added).

DRL § 25, in its present form, serves no useful function in today's world. Conceivably, if the statute was amended to allow couples who justifiably believed they were legally married with a valid marriage license to protect the marriage from a claim that the license was improperly executed or otherwise defective, that would certainly serve the public interest. But as it exists now, the statute allows for the wholesale disregard of New York's licensing requirements — requirements that, as we have seen, play a vital role in insuring that marriages are legally valid. Until DRL § 25 is repealed or reformed, courts will be forced to grapple with situations like this, where the parties fully understood that they did not legally marry but one side seeks to abuse the statute to attain the financial remedies only available to litigants who are married to one another.

In light of the foregoing, it must be concluded that plaintiff cannot show that she and defendant are married, and therefore has failed to prove an essential element of her prima facie case for divorce. The clerk is directed to enter judgment in favor of defendant dismissing the complaint."

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