By Danny DeCota
The latest news is the ruling of the US Supreme Court on a case that touched upon the question of whether the Constitution gives rights to married couples. The court has ruled unanimously in favour of the plaintiffs who were seeking to have their marriage recognised as legal under the Due Process Clause of the Fifth Amendment. This is one of the most important decisions of the Supreme Court since its inception in 18 Roberts v Wade. The decision could have wide ranging effects on all aspects of American society and family law including marriage. So what do we learn from this latest case?
In defining the parameters under which the States can decide whether or not to recognise same sex marriages, the court found it necessary to draw a line between the traditional forms of marriage and those that are now deemed to be illegal by the majority of states. For example, the high court has held that traditional wedding ceremonies are within the bounds of the 14th amendment’s guarantee of freedom of speech. It also held that the fact that the marriage has been held for an extended period of time makes that form of marriage more likely to fail than other types. This view was taken by the court even though there was evidence that some forms of weddings had succeeded over many years. The opinion was based on the fact that state law has recognised two different types of marriage over the past half century. These were/are recognised as traditional weddings by the state, whilst other weddings have been recognised by the state as marriages that are recognised by the law.
Although the ruling did not directly address the issue of marriage fraud, it is probably assumed that same sex marriages would be regarded by the courts as invalid if a person had been the subject of a same sex marriage ceremony and then subsequently divorced, subsequently marrying someone else. This is regardless of the divorce or marrigage cause, such as the signs of a cheating spouse or partner. However the court made it clear that this was not a basis for refusing a marriage license to anyone. It is likely therefore that future legislation will be drafted to ensure that no discrimination takes place in regard to marital status. It is likely that in future only those who enter into a same sex marriage will be denied a marriage license. No longer will couples in same sex relationships be required to wait for their partner to become available before they are able to get married. And the two gender marriage ban may become a thing of the past.
It is also not expected that any legislation that Parliament passes will redefine marriage. The definition of marriage is given by statutory law in both the UK and the US, and each country retains the right to determine what marriage is not. In the US it is the opinion of the court that a marriage is only valid in the state in which it is contracted, and there are currently no federal protections in place which prevent same sex couples from entering into common-law marriage. As regards same sex marriages, a recent High Court ruling in the US stated that it was irrelevant whether or not the couple were aware that they were legally married.
This means that in the case of a resident of one state entering into a marriage contract with a person who is a resident of another state, that state law will need to be considered. The same applies for people who cohabit. Any action taken under the Preventative Custody and Support Act, which ensures shared parental care and support payments, will need to be brought into accordance with the state law. This means that if one parent has applied for divorce and an application for a marriage license was refused then the application would need to be brought into compliance with the state law. The same applies to people who wish to change their name on their marriage license after having undergone a divorce.
Divorce can be an emotional and difficult time for all parties involved and can cause stress and disruption to families for years on end. If the application for a marriage license is refused then the couple have to wait a certain period of time before they can apply for a Marriage Licence Renewal. After this period has passed then the couple may apply to have the records of their divorce entered onto their marriage records. Once these records are in place, then the couple can apply to be married again under the marriage act. The act states that if a married couple has got married again then they do not have to obtain a new marriage license but if they wish to do so then they must first present their application to the registrar of marriages and this can only be done once.
