The Problem of Bigamous Gay Marriages

Imagine discovering that your husband is still married to someone else!  In the past that was just a problem for straight couples, but now it is cropping up regularly in the gay community, and the legal issues are even more complex for us.  What constitutes a marriage, and when must there be a divorce in order for someone to re-marry?  With the wide variety of legal options out there (civil union, city domestic partnership, state-registered partnerships), many folks are uncertain as to when they need a legal divorce.  And, if they married in one state but live in a non-recognition state now, it may not be so easy to get a divorce.

This is just the problem that arose in the case of Elia-Warnken v. Elia (2012 WL 302981, July 26, 2012, in the Supreme Judicial Court of Massachusetts).  Todd had signed up for a civil union registration in Vermont with a partner in 2003, but the couple had never formally dissolved their union.  Then, a few years later, Todd re-partnered, and in 2005 he married his new partner, in Massachusetts.  In 2009, Todd filed for divorce from the new partner, and the new partner sought to dismiss the divorce action – on the grounds that they were never really married.  Putting aside the question of why Todd is hopping in and out of marriages so quickly, the legal question was whether the second marriage was void on the grounds of bigamy.

The Massachusetts court ruled – correctly I believe – that the Vermont civil union was equivalent to a marriage under Massachusetts law.  They decided this because of the doctrine of comity (each state should recognize the actions (marriages) of another state), and also, that it would lead to legal chaos to disregard a Vermont civil union.  While the civil union status was technically different than legal marriage, it invoked all the “rights and duties” of marriage and thus was equivalent to a marriage.  Since Massachusetts law deems a Vermont civil union as equivalent to marriage, the bigamy rules apply in this situation, rendering the second marriage void.

Thus, there was no need to “dissolve” the second marriage, nor did either spouse have any legal or property rights arising out of the second marriage.  By the way, Todd’s legal problems are not entirely over — he now has to formally dissolve his first marriage!

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