November 1, 2017

Pardalis & Nohavicka Human Rights Law Update

Pardalis & Nohavicka Human Rights Law Update: Foreign Same-Sex Couple Not Doomed to Un-Undoable Marriage

“Equity admits an exception from a generally enacted law.” (Ancient Maxim)

A same-sex male couple from Warsaw, Poland, had been together since 1999, but recognized that the chances of ever being able to marry in their native country were minimal. In the face of Poland's strongly entrenched opposition to same-sex marriage, the parties flew to New York on December 3, 2013, solely for the purpose of marrying. Immediately thereafter, they returned to Warsaw.

A few years after returning home to Poland, they decided that they did not want to remain married. But because Poland does not recognize same-sex marriage in any form, they could not turn to their local courts to obtain a divorce.  They came back to NY and filed their uncontested divorce papers in Manhattan. The papers, however, were rejected by the Matrimonial Clerk. The Clerk entered the following notation on the file: "Cannot file in NYS. Both parties reside in Poland. Residency requirement not met."

NY’s Domestic Relations Law sets forth how long an individual must reside in New York before being able to maintain an action for divorce in our courts. The couple lived in Poland. That was why the clerk rejected the papers.  The couple asked the Supreme Court in Manhattan for relief.  And relief is what they received.

 Justice Matthew Cooper wrote: “Basic fairness and social justice, along with the lack of any adverse impact on this state and its court system, all appear to be sufficient reasons to allow plaintiff to maintain this action for an uncontested divorce.” But the judge decided the case on the ground that the residency requirement is an affirmative defense, which may be used by the defendant. Here, the defendant wanted the court to have jurisdiction.  Happily separated, the erstwhile couple returned to Warsaw.


Here is the case: (very interesting and nicely written)


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