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.