UPDATE: Obviously the U.S. Supreme Court decision Obergefell v. Hodges, 576 U.S. 644 (2015) makes this blog post obsolete. I’m going to leave the post visible though, as a reminder of how much has changed. Same sex couples are treated no differently than opposite sex couples under current law in Tennessee. Go get married. Or stay single. The choice is yours! It’s a great thing.
The Associated Press reports that an Indiana court has refused to grant a divorce to a same-sex married couple. In this case, the couple had married in Canada and eventually moved to South Bend, Indiana, where they are now seeking a divorce. The Indiana court is refusing to hear the case because the marriage is illegal under Indiana law.
What about Tennessee, could a same-sex married couple be divorced here?
Divorce is a remedy that may be awarded by a court. Tennessee uses a fault-based system for dissolving a marriage. This means that in order to be awarded a divorce, you must prove to the court that either your spouse has acted in a way that gives you adequate grounds for divorce, or that irreconcilable differences have arisen between the parties.
Either way, the award of a divorce is only appropriate if a marriage had actually existed between the parties. The question is then, would this couple’s marriage be valid in Tennessee? After a much publicized battle and vote, our state constitution was amended to read:
The historical institution and legal contract solemnizing the relationship of one (1) man and one (1) woman shall be the only legally recognized marital contract in this state. Any policy or law or judicial interpretation, purporting to define marriage as anything other than the historical institution and legal contract between one (1) man and one (1) woman, is contrary to the public policy of this state and shall be void and unenforceable in Tennessee. If another state or foreign jurisdiction issues a license for persons to marry and if such marriage is prohibited in this state by the provisions of this section, then the marriage shall be void and unenforceable in this state.
It may seem unfair, but since Tennessee cannot recognize a same-sex marriage, the courts cannot award a judgment of divorce to these couples. This is exactly the same situation as in Indiana.