Family law is messy. The divorce rate in the United States is roughly half of the marriage rate, and the load on municipal courts is overwhelming. Parties lack the resources for extended court battles, family courts receive considerable discretion from appellate courts, and the huge number of cases going through the courts every day has led to a dearth of family law appellate cases; with many important decisions left unexamined.

My aim in writing for this blog is to comment on the intersections of family law and social justice, with an emphasis on how small courts are deciding big issues.

This summer the Arizona Court of Appeals overturned a Maricopa County Superior Court’s ruling in Surnamer v. Ellstrom, and granted the parties an annulment of their marriage. The parties, both men, were legally married in Canada in 2005.

The Superior Court denied the parties an annulment on the grounds that an annulment would grant the parties a de facto marriage, a violation of Article XXX of the Arizona Constitution, which prohibits same sex marriage. The Court of Appeals reversed the Surnamer decision, granted the annulment, and upheld the property division arrangement that the parties had drafted.

Annulments are not divorces; rather, they are findings that, for whatever reason, the marriage at issue is invalid. This finding complies with the letter of the law in Article XXX, but it does little for couples that want out of state same-sex marriage to be held valid prior to dissolution.

Surnamer provides same-sex couples with some important wins. Without annulment, it is unclear whether marriages from other jurisdictions might bring lingering legal and economic consequences to the same-sex parties after the end of their relationships. Remedies that typically accompany dissolution, including property division and child custody, might be unavailable to the same-sex parties despite significantly intermingled assets and dependent children.

The Court of Appeals opinion gives the parties access to judicial property division. The agreement is a contractual one rather than a statutory scheme like community property, so it would probably require significant legal work to create a similar division for future parties. This is only a small step towards legal protection for divorcing same-sex couples, but an important one nonetheless.

The decision brings forth several important issues for further consideration. First, the decision essentially rests on a theory of promissory estoppel. Promissory estoppel is a contract doctrine that allows parties to an invalid contract to get back the money and effort they spent relying on that contract. The parties detrimentally relied on what Arizona ruled was an invalid marriage contract, so the court returned the parties to the state they would have been in if the contract had never happened.

This analysis would be much more complicated if the parties had biological or adopted children, if the parties had significant shared business interests, or if the parties had lived as a married couple for more than five years. It is unclear how damages could be calculated to accommodate for such significant, long-term reliance, and the ligation could become onerous and expensive.

Additionally, even though this issue is not litigated in Surnamer, there is a great deal of conflict brewing over whether gay marriages must be accepted by other jurisdictions because of the Full Faith and Credit Clause in Article IV, Section 1 of the U.S. Constitution. Full faith and credit is to be given to all court decisions made in the United States so that most lawsuits are not retried when individuals move to different states.

Courts are divided over whether this clause guarantees couples the right to have their marriages and divorces from same-sex marriage states recognized by states that do not recognize gay marriage. This challenge would not have settled the issue in Surnamer because the marriage took place in Canada, but in a future post I will discuss Full Faith and Credit challenges that are being brought by same-sex couples with adopted children.

Surnamer v. Ellstrom highlights the power that lower and intermediate courts wield in adjudicating family law matters in spite of the strong public policy cited in this case disfavoring such decisions. While challenges to marriage restrictions take place nationally, family law is still an essentially local matter, and this court has signaled that it will retain its authority to adjudicate such issues.

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