And now come the divorces…

A WashPost article this morning describes a gay union between two men, entered into back in the 70s, dissolved several years later.

The article is a good reminder of the obvious: that the legal aspects of marriage are most salient at the time of break-up, not during the marriage itself. If you ask someone what legal protections they are seeking in marriage, maybe they’ll mention health insurance and hospital visits. Effectively, for most couples, the law does not permeate daily married life.

But the law is the great regulator of dissolution. It is no surprise that in my Family Law class we spend 25% of the semester on marriage and 75% on dissolution and non-marriage, and even then I think I am too generous toward marriage.

Couples (gay or straight) who break up without the legal protection of divorce proceedings (because they never married) have very real problems, ones that are hardly considered at the time of moving in together. Property, custody of children, pension rights, support benefits – none of these can have the oversight of family court (flawed as that oversight may be) if there isn’t a marriage. In fact, even in Wisconsin – a state whose highest court wrote the law on third party rights to visits with children –it’s very difficult to gain access to your partner’s children unless you can demonstrate (a legal certificate sure would help here) that you were indeed acting in a parent-like relationship toward the child.

Perhaps, then, in this great discussion of gay marriages we should be really concentrating on gay divorces. Maybe I could suggest to GWB that he should amend the proposed constitutional amendment so that it realistically states what it is we are asking the constitution to do: “marriage may only be entered into and dissolved if it is between a man and a woman.” Phrased this way, maybe it would wake opponents to gay marriage up to the absurdity of this kind of legal limitation: the vast majority of couples who are splitting up needs the protection of the law – most can’t get to a fair result without it. The point is so obvious, yet so negelcted (by those on both sides of the issue) in current discussions of the merits of gay legal unions.