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Rosie O’Donnell and her wife Kelli Carpenter married in San Francisco on February 26, 2004. Rumour has it that Kelli moved out of the couples’ condo with the youngest of their four children. Rosie admits that there are difficulties in the relationship, but denies that the couple is breaking up. She stated:

“We’re a family, we remain a family and we’re working on the issues…But everything’s fine and everybody’s good…and we’re friendly and everything’s all right.”

It is rumoured that Kelli initiated the separation, but she has yet to make a public statement regarding the status of her marriage and whether she will be filling for divorce. This is likely because she wants to provide herself and her children as much privacy as possible or because she is unsure the future of her marriage. But, she may have decided not to speak publicly about her separation with Rosie because she is unsure about whether she can file for divorce.

Although the parties married in 2004, the legality of this marriage is in question. In 2008 the California Supreme Court held that marriage is a fundamental right that extends to all persons. This means that any laws banning same-sex marriage are unconstitutional and thus invalid.

Despite this decision, Californians voted against equal marriage rights by passing Proposition 8, which will add the words “Only marriage between a man and a woman is valid or recognized in California” to the California Constitution. The validity of Proposition 8 is being challenged on the grounds that it was passed with discriminatory intent and that the California Constitution, a document intended to protect the rights of all Californians, cannot be amended to by a simple majority vote.

Fortunately, in Canada all persons1, gay, straight and anywhere in between, have the right to marry. But, this does not mean that Rosie and Kelly would be able to get divorced in Ontario if they were married here.

According to Ontario family law, a person must primarily reside in Ontario for at least one year before they can apply for Divorce in Ontario. So, even if Rosie and Kelli married in Ontario, they would not be able to divorce in Ontario unless one of them lived here for a year.

So, regardless of where same-sex couples marry, it is unknown how or if they will ever be able to divorce if they live in a place where their marriage is not recognized. When same-sex couples file for divorce in states that do not recognize equal marriage rights, their applications are denied because the courts cannot grant a divorce when they do not recognize the marriage.

For now, it looks as though Rosie and Kelli will have to stay married until the California courts decide whether Proposition 8 will be used to amend the California Constitution. Should the courts decide that Proposition 8 is invalid, Rosie and Kelli will likely be able to file for divorce just as any other married couple can. But, should the courts decide to amend the California Constitution in accordance with Proposition 8, Rosie and Kelli may never be able to get divorced because their marriage was legal when they wed, but would no be considered valid in order for them to file for divorce.

1Well, not quite all persons. Disability rights activists are fighting for the right of person’s with mental disabilities to marry.