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Judiciary Allows Same Sex Couples to Dissolve Civil Unions on No-Fault Grounds

The Appellate Division this past week approved another decision by family court judge, Hon. Lawrence R. Jones, J.S.C., this time in the matter of Groh-v-Groh, which was decided back in March, 2014.  The parties in this case are a same sex couple who entered into a civil union in 2008, which they wished to end by 2014.   With the advice of independent matrimonial counsel, they entered into a written settlement agreement of their issues, and submitted a dual judgment of dissolution that would end their civil union on the grounds of irreconcilable differences.   Unlike the New Jersey statute for divorce, however, the statute for the dissolution of a civil union, N.J.S.A. 2A:34-2.1 does not contain a provision for the dissolution of a civil union on the grounds of irreconcilable differences.

Judge Jones pointed out that after this statute was enacted, the Supreme Court in Lewis v. Harris, 188 N.J. 415, 423 (2006), that “unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our State Constitution”  The Supreme Court asked the New Jersey Legislature to enact legislation to allow same-sex couples similar rights to married heterosexual couples.

Months later, the Legislature passed and then Governor Jon Corzine signed the New Jersey Civil Union Act, N.J.S.A.  37:1-28 to -36, which did not allow same sex couples to marry, but which allowed them to enter into civil unions.  The Legislature also enacted thereafter N.J.S.A. 2A:34-2.1, to allow a a civil union to be dissolved on one of the following fault-based grounds:

a. voluntary sexual intercourse between a person who is in a civil union and an individual other than the person’s partner in a civil union couple;

b. willful and continued desertion for a period of 12 or more consecutive months;

c. extreme cruelty;

d. separation for a period of at least 18 or more consecutive months with no reasonable prospect of reconciliation;

e. voluntarily induced addiction or habituation to any narcotic drug, or habitual drunkenness for a period of 12 or more consecutive months;

f. institutionalization for mental illness for a period of 24 or more consecutive months;

g. imprisonment of the defendant for 18 or more consecutive months.

At this time, neither the dissolution of civil union statute, nor the dissolution of marriage statute, provided a no fault grounds for divorce, such as irreconcilable differences.

That changed just a month later when, in January, 2007, the Legislature amended the divorce statute to include irreconcilable differences as a no-fault basis to grant a divorce and dissolve a marriage. This meant that married couples could end their marriage amicably without having to blame the other in hurtful ways for the end of the marriage. At the time, Governor Corzine stated: “[I]t is my clear understanding that this bill will be applicable to same-gender couples who have entered into a civil union as well as to mixed-gender couples joined in matrimony.”

The civil union statute, however, was never amended to include irreconcilable differences to dissolve a civil union, which lead to this situation in Groh.

In this case, Judge Jones reasoned that when the dissolution of civil union statute was enacted, the Legislature intended to create a statute that mirrored the divorce statute.    Also, N.J.S.A. 37:1-33 directs that any law which references marriage “shall include a civil union”, and, therefore, Judge Jones concluded that it is logical to conclude that the civil union statute should have been expressly amended to include irreconcilable differences as a ground for dissolution, but was not done so because of “drafter oversight” due to the time gap of just 31 days between the enactment of the statutes.   The judge could ascertain no public policy reason for married couples to be able to end their marriages on no-fault grounds but couples in civil unions could not.   Judge Jones reasoned that to deny same sex couples the ability to end a civil union based on no fault grounds would be a denial of their Constitutional right to equal protection.

Judge Jones further reasoned that settlement of litigation is an important public policy in this state, and having a statute that requires litigants to make statements that blame the other discourages settlement and that litigants who want to proceed to a peaceful, no-fault resolution should be permitted to do so.

Finally, Judge Jones pointed out that the U.S. Supreme Court in United States v. Windsor, 133 S.Ct. 2675 (2013) and the New Jersey Supreme Court in Garden State Equality v. Dow, 434 N.J. Super. 163 (2013), means that same sex marriages are recognized in this State and, therefore, the divorce statute applies to same-sex marriages and heterosexual marriages equally.  Since same-sex couples can divorce on no-fault grounds, why can’t same sex couples dissolve their civil union on no fault grounds as well?

Our State continues to promote equality and fairness in its laws and our judges continue to promote the respect and integrity of the Judiciary, which we should all be thankful for.