NY Court Dismisses Divorce Petition Where Religious Marriage was Performed Without a License Ten Years Earlier

In what may have been the first New York court opinion to cite Obergefell v. Hodges, a Manhattan trial judge ruled on July 2 that a purported marriage between an Orthodox Jewish woman and a man was invalid, even though the parties lived together for ten years after a rabbi performed a marriage ceremony for them without a marriage license.  Devorah H. v. Steven S., 2015 N.Y. Slip Op. 25228 (Sup. Ct., N.Y. Co.).

The parties never obtained a marriage license.  They were living together with their young children from prior marriages in a tiny apartment, and sought help from their rabbi in finding more suitable housing when a complaint by the woman’s ex-husband to the Administration for Children’s Services caused alarm.  The rabbi found them a larger apartment and suggested they should marry before moving.  He then officiated an abbreviated religious marriage ceremony for them on the spot, partially completing a standard form certificate (which he didn’t sign) and urging them to go to City Hall and get a license.  They didn’t follow up, however.

Ten years later the woman filed for divorce and the man moved to dismiss, contending they were never validly married.  The woman relied on NY Domestic Relations Law Sec. 25, which provides that a “properly solemnized” marriage is valid despite the lack of a marriage license.  This is an ancient statute, most likely passed in order to validate religious marriages in the large immigrant community in New York when it was adopted in the early years of the 20th century.  After recounting the extensive testimony of the man, the woman, and the rabbi on the question whether this marriage was “properly solemnized,” the court concluded that the marriage was invalid, noting particularly the rabbi’s testimony that he had repeatedly urged the parties to “go to City Hall” to get a license, and that they had to know that they would need a new solemnization after a license was issued.  The man testified that after they left the rabbi’s office, he had torn up the copy of the certificate that the rabbi gave them.

Supreme Court Justice Matthew F. Cooper’s conclusion, invoking Obergefell, is interesting: “In the over 100 years since the enactment of DRL Sec. 25, the way citizens marry in New York has changed immeasurably. While at one time the wedding ceremony was the central element of the process, that is no longer the case; church weddings are more and more the exception rather than the rule, and the new wage of marriage ceremonies would be almost unrecognizable to earlier generations.  What is key to the process is the marriage license itself.  This is not only true for New York, but for the entire nation.  After all, when the United States Supreme Court issued its historic decision in Obergefell v. Hodges (576 U.S. – [2015]) making the right to same-sex marriage the law of the land, it did so by decreeing that ‘States are required by the Constitution to issue licenses to same-sex couples’ (emphasis added).”

“DRL Sec. 25, in its present form, serves no useful function in today’s world.  Conceivably, if the statute was amended to allow couples who justifiably believed they were legally married with a valid marriage license to protect the marriage from the claim that the license was improperly executed or otherwise defective, that would certainly serve the public interest.  But as it exists now, the statute allows for the wholesale disregard of New York’s licensing requirements – requirements that, as we have seen, play a vital role in insuring that marriages are legally valid.  Until DLR Sec. 25 is repealed or reformed, courts will be forced to grapple with situations like this, where the parties fully understood that they did not legally marry but one side seeks to abuse the statute to attain the financial remedies only available to litigants who are married to one another.”

“In light of the foregoing, it must be concluded that plaintiff cannot show that she and defendant are married, and therefore has failed to prove an essential element of her prima facie case for divorce.”

The court evidently did not consider the couples’ ten years of cohabitation after the quick marriage ceremony to be a basis for finding the woman eligible to seek a formal divorce and disposition of assets.  This apparently rests on the court’s conclusion that the woman could not under the circumstances claim justifiable reliance on a belief that she was in a valid marriage with the man.  The court noted the “Rashomon effect” in the parties’ testimony, the man, the woman and the rabbi each providing a different account of what happened, leaving the court to sort out questions of credibility, which were resolved against the woman.

Devorah H. is represented by Eurydice A. Kelley, Steven S. by Jeffrey S. Kofsky.

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