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Can New York court refuse to grant divorce to gay couple married there?

Since the legalization of gay marriage in the United States, courts in some states have struggled to balance gay marriage and divorce with laws already existing in their states. An example of this struggle recently occurred in a New York City courtroom. City hall refuses to grant divorce to gay couple married in NYC, by Julia Marsh, nypost.com, October 31, 2017. The history of this case goes back to 2013 when Mayor Bloomberg enacted the "NYC I Do" campaign, "which encouraged gay tourists to come to the city to marry if there were banned elsewhere." Two Polish men, Andrzej Gruszczynski and Wiktor Jerzy Twarkowski, took advantage of this offer, marrying before a city clerk in New York City before returning to Poland shortly thereafter. A few years later the couple made the decision to divorce and filed an uncontested divorce proceeding in New York. A clerk made a note on their file that the parties could not divorce in New York due to the fact that they live in Poland and, thus, did not meet the state's residency requirement. With no option for divorce in Poland where same sex marriage is not recognized, the parties sought help from the New York judge.

Luckily for these men, the Judge held that since the state of New York married the men, it must offer them the right to end that marriage. He waived the residency requirement, setting precedent for other courts to do the same. Since there were numerous couples who took advantage of this opportunity and there are still countries where same sex marriage is illegal, there are likely to be other divorces falling into this category. In this case, if New York did not grant their divorce, there was literally no way they could legally end their marriage. Even though other countries in the European Union (of which Poland is a part) recognize same sex marriage, these parties and their marriage have no connection to these other countries and, thus, there is no reason for a residency requirement to be waived there. The difference here, and the reason the Judge issued his order, is that New York married the men and, thus, since there was no other alternative, it must give them a venue to divorce.

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