Archive of August 2014

August 24, 2014

​Food for Thought: Do Florida Courts Need to Allow Same Sex Marriage and Grant Divorces in Same?

Although there are isolated cases in South Florida where the courts have issued marriage licenses for same sex marriage, it is not recognized to be legal in Florida at this time.

Florida's ban on same-sex marriage and refusal to recognize out-of-state same-sex marriages is argued to be unconstitutional, based upon the Due Process Clause of the Federal Equal Protection Law, Florida Article I, Section 27 of Florida Constitution and Section 741.04(1), providing it is unconstitutional as it violates petitioner's fundamental right to marry under due process clause and discriminates on basis of sexual orientation.

Naturally, this is going to become a large issue as although, Florida does not yet recognize same sex marriages, the Courts are going to have to entertain Dissolutions of these same sex marriages applying the following analogous hypothetical:

If a couple, married by common law marriage in a state that recognizes it as legal, moves to Florida and seeks a dissolution of marriage, Florida courts will respect their common legal marriage as legal. Thus, this legal marriage would be subject to the application of Florida Statute Chapter 61, Dissolution of Marriage.

Some proponents of this change indicate that this is consistent with a same sex couple being legally married in a State that recognizes same sex marriage who move to Florida and seek a Dissolution of Marriage.

Time will tell how this legal issue unfolds. Unquestionably, whichever political/religious position you take, this issue will be an attention-grabber in the next few years as Florida tackles the issue, and potential re-writing of current statutes. 

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