Wednesday, July 20, 2011

The Consequences of Equality

“Any intelligent woman who reads the marriage contract, and then goes into it, deserves all the consequences.” ~Isadora Duncan

Recently the New York State legislature finally passed changes which now permit registration of marriages between persons of the same gender. Many rightly celebrate the triumph of equality under the law, yet for some, the prospect of “legalizing their relationship” may evoke concerns about the potential transformation of something special into something “legal” that can be regulated and ultimately dissolved through a divorce process. In his 1908 work, entitled “Getting Married”, George Bernard Shaw wrote, “When two people are under the influence of the most violent, most insane, most delusive, and most transient of passions, they are required to swear that they will remain in that excited, abnormal and exhausting condition continuously until death do them part.” Of course, that was satire, but the Hand of the Law and Government is now firmly involved in the households which choose to register their same-sex marriage in New York, and this, ladies and gentlemen, brings with it all of the legal consequences of matrimonial law. Let us take a look at just two areas which will be affected by these changes.

Parenting Issues
Before: If a same sex couple wanted to adopt a child they needed to go through a very serious adoption process. Even if the child’s biological parent is one of the partners in a same sex relationship (two women and one of the women is the biological mother of the child; two men and one of the men is the biological father of the child), the second partner would have to go through a “Second Parent Adoption” process in the courts in order to become the legal parent of the child. This way, if the relationship between two same-sex partners deteriorated, each of them would have parental status, regardless of the existence of a biological connection. If no formal adoption took place, rights of the biological parent had clear priority.
After: The existing New York family and divorce law presumes that a child born within the marriage is the legal child of both parents. New York Courts strongly oppose attempts to delegitimize a child of the marriage, and although this presumption is rebuttable, the burden of proof is quite high.
Logically, when applied to same-sex marriages this law should obviate the need for a Second Parent Adoption, as each parent should have legal status as long as the child is born after the date of the marriage.
Equitable Distribution – Real Property
Before: if a same sex couple lived together for over 20 years and owned a piece of property, the legal owner would generally be the person(s), whose name appears on the deed. Thus, if two partners jointly owned their house, each would have rights to the property. If only one of their names was listed on the deed, only that person would be considered the owner. Even if they jointly own the property, since the parties were not considered “married” when it was purchased, dividing it, if they cannot agree is rather difficult and often requires a “partition” action unrelated to dissolution of their relationship.
After: All property acquired after the date of the marriage is presumed to be joint property, even if it is acquired in the name of one of the spouses only. The other spouse is usually entitled to his/her equitable share (in most cases 50/50) of the property. If the parties cannot agree on what to do with their property, these issues are resolved by the same matrimonial judge, as part of their divorce process. There is no need to commence a separate action in a separate court.
In short, the State now has the legal right to “meddle” in same-sex relationships, which choose to register their marriages. Will the legal institution of marriage, now that it is available to all, remain appealing to so many? I suppose, the good thing about it is that the questions and answers related to “To Wed or Not to Wed” will now be the same for couples of same and different gender, and this is what we call “equality”.

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