Lesbian Couple Fails to Secure Florida Divorce Using Unique Interpretation of Same-Sex Marriage Statute

A Christmas Eve ruling from the Third District Court of Appeal might have appeared to be a cause for cheer among those who support the state’s ban on same-sex marriages, but a careful reading provides a different perspective. The lesbian couple who litigated the matter lost their case largely on procedural grounds, since there were no issues in dispute between them, meaning that there was no “controversy” for the court to resolve.

While the factual background of O. and S.’s same-sex divorce case was not especially unique, the legal component was. Married in Iowa in 2009, the couple moved to Florida some time later. By 2012, the couple opted to go their separate ways, with O. filing for divorce.

In the divorce case, both O. and S. argued that Section 741.212 of the Florida Statutes, which bans same-sex marriages, is silent on the matter of same-sex divorces, and, as a result, no statutory barrier existed to prevent the court from giving them the divorce they sought. Each of O. and S. expressly avoided contesting the constitutionality of the statute. The trial court dismissed their case based on the authority of the statute.

The unusual approach taken by the women proved the case’s undoing. The appeals court noted that both of them joined in the same argument on appeal detailing why the trial court should have granted O.’s divorce petition. In any appeal, a “controversy” must exist, meaning there must be a dispute between the opposing parties. Since no such legal dispute existed between O. and S., there was no controversy on which to rule.

The court went on to reject the fundamental basis of the couple’s argument that, since the statute did not mention same-sex divorces, the courts were not barred from granting them. In order to grant a divorce, a court must first find that the couple’s marriage is irretrievably broken. If no marriage existed in the first place, there was no marriage to break down. “Where there is no valid marriage there can be no divorce,” the court succinctly summed up.

The appeals court did offer an alternative, however. The couple quite possibly had grounds to obtain an annulment. In annulment case, Florida courts analyze marriages based upon “the validity of a marriage in accordance with laws of the place where the marriage occurred.” Since the couple had a valid Iowa marriage, a petition for an annulment might achieve better success.

The ruling does not have much impact on the larger question of the constitutionality of the statutory same-sex marriage ban, since the couple specifically declined to make an argument of unconstitutionality in their case.

As the law of same-sex marriage and divorce continues to evolve in Florida, it is very important to work with knowledgeable family law attorneys who are on top of this shifting landscape. For clear and helpful advice regarding your same-sex family law issues, consult the South Florida family law attorneys at Sandy T. Fox, P.A. Our attorneys can help guide you through the law and legal procedures as you deal with this time of legal uncertainty.

More blog posts:

Broward Judge Grants Florida’s First Ever Same-Sex Divorce, Fort Lauderdale Divorce Lawyer Blog, Dec. 17, 2014
Keys Judge Rules Florida’s Same-Sex Marriage Ban Unconstitutional, Fort Lauderdale Divorce Lawyer Blog, July 21, 2014