This case presents a legal issue regarding same-sex rights and statutory interpretation of N.J.S.A. 2A:34-2.1, which sets forth a
FACTUAL HISTORY
In 2008, plaintiff and defendant entered into a civil union. Five years later, plaintiff filed a complaint and defendant filed a counterclaim, each seeking a judgment dissolving the union on the no-fault ground of irreconcilable differences. The parties, who were each represented by experienced matrimonial counsel, amicably resolved all of their other pending issues by entering into a detailed written settlement agreement. On March 12, 2014, the parties and their attorneys appeared before the court, jointly seeking to conclude the proceedings via dual judgment of dissolution. N.J.S.A. 2A:34-2.1, however, does not explicitly include irreconcilable differences as an applicable legal ground for dissolution of a civil union.
LEGAL ANALYSIS
On October 25, 2006, the New Jersey Supreme Court held in Lewis v. Harris, 188 N.J. 415, 423,
Two months later, on December 21, 2006, in direct response to Lewis, the Legislature enacted the New Jersey Civil Union Act, (the “Act”), N.J.S.A. 37:1-28 to -36, which then-Governor Jon Corzine signed into law. While the state did not at that time legalize same-sex marriages, the Act formally established the right
The Act created statutory authority for the forming of a civil union between same-sex partners. At the same time, the Legislature enacted N.J.S.A. 2A:34-2.1, which provided for legal dissolution of such union. Specifically, N.J.S.A 2A:34-2.1(a)-(g) authorized the family courts of this state to judicially dissolve a civil union for any of the following enumerated reasons:
a. voluntary sexual intercourse between a person who is in a civil union and an individual other than the person’s partner in a civil union couple;
b. willful and continued desertion for a period of 12 or more consecutive months;
c. extreme cruelty;
d. separation for a period of at least 18 or more consecutive months with no reasonable prospect of reconciliation;
e. voluntarily induced addiction or habituation to any narcotic drug, or habitual drunkenness for a period of 12 or more consecutive months;
f. institutionalization for mental illness for a period of 24 or more consecutive months;
g. imprisonment of the defendant for 18 or more consecutive months.
Notably, the list did not expressly include a separate cause of action for dissolution of a civil union based upon the no-fault
By comparing the multiple statutory causes of action which existed at that time for dissolution of a marriage under N.J.S.A. 2A:34-2, and dissolution of a civil union under N.J.S.A 2A:34-2.1, one sees that the two lists were essentially mirror images of each other. The only notable semantic difference was that in the divorce statute, there was a cause of action under N.J.SA 2A:34-2(a) for “adultery,” as opposed to N.J.S.A. 2A:34-2.1(a)’s cause of action for “voluntary sexual intercourse between a person who is in a civil union and an individual other than the person’s partner in a civil union couple.” This distinction in language was purely form over substance, in that the legal definition of adultery required an extramarital sexual relationship. Since a civil union was technically not a “marriage,” the exact wording and historical definition of the word “adultery” did not perfectly fit into the context of a non-marital civil union. Accordingly, the Legislature simply utilized words other than “adultery” to reach the same substantive result, i.e., that a party could seek to end either a marriage or a civil union when during such relationship, their partner had a sexual affair with a third person.
Based upon the near-identical nature of the respective causes of action for divorce and dissolution of civil union, it is self-evident that as of December 20, 2006, the Legislature’s intent was to create a symmetry between the recognized causes of action for divorce and dissolution of a civil union, in a manner consistent with the terms and constitutional spirit of Lewis v. Harris, supra, 188 N.J. at 423,
Between the December 21, 2006, enactment of the civil union statute and its effective date of February 19, 2007, another major legislative development occurred with significant impact upon New Jersey family law practice. On January 20, 2007, the Governor signed into law P.L. 2007, c. 6. This legislation formally amended the statutory causes of action for divorce under N.J.S.A. 2A:34-2, so as to allow married couples to divorce on the no-fault ground of irreconcilable differences. N.J.S.A. 2A:34-2(i). The amendment was clearly intended and designed to permit people to end their marriages in a calm and dignified manner without having to engage in hurtful and unproductive mudslinging over who was at fault for the failure of the partnership. The amendment, however, did not expressly amend N.J.S.A. 2A:34-2.1(a)-(g), so as to include irreconcilable differences in the list of causes of action for dissolution of a civil union as well.
Given the language in N.J.S.A. 37:1-33 which directs that any law which references marriage “shall include a civil union,” it is logical to conclude that the language in N.J.S.A 2A:34-2.1 should have also been expressly amended to include irreconcilable differences. From a standpoint of public policy, reason, and common sense, the omission of language specifically amending and updating N.J.S.A. 2A:34-2.1, so as to include irreconcilable differences as an explicit cause of action, appears to be nothing more than inadvertent drafter oversight, most likely resulting from the remarkably small gap of time (thirty-one days) between enactment of the two statutes. For certain, there is no language in the legislative history of either act which reflects any specific intent by the Legislature to permit only heterosexual married couples the
As noted by the New Jersey Supreme Court in Hubbard ex rel. Hubbard v. Reed, 168 N.J. 387, 392-93,
New Jersey’s two other branches of government, the executive branch and judicial branch, have both informally interpreted the “irreconcilable differences” amendment of the divorce statute to at least implicitly apply to dissolution of civil unions as well, even in the absence of express statutory language in N.J.S.A. 2A:34-2.1 stating same. First, in signing the “irreconcilable differences” amendment into law, the Governor issued a public signing statement that, “it is my clear understanding that this bill will be applicable to same-gender couples who have entered into a civil union as well as to mixed-gender couples joined in matrimony.” Governor’s Signing Statement to S. 1467 (Jan. 20, 2007). Second, shortly after the Governor’s statement, the Administrative Office of the Courts (“AOC”) forwarded correspondence to the various
Presently, however, there remains a very practical and real-life problem regarding the specific language of N.J.S.A. 2A:34-2.1, which remains in the law books in its original format, with the “irreconcilable difference” language still absent from the list of grounds for dissolving a civil union. In an era when many litigants cannot afford to hire an attorney, and try to represent themselves in a pro se capacity by engaging in self-education at law libraries or through online research, a lay person reading and relying upon the explicit wording of N.J.S.A. 2A:34-2.1 may easily reach the erroneous conclusion that one cannot dissolve his or her civil union on the ground of irreconcilable differences. In fact, even seasoned attorneys may reach the same legal conclusion if they rely solely and strictly on the exact language in N.J.S.A. 2A:34-2.1 itself. As a result, some litigants who otherwise qualify for no-fault dissolution may mistakenly believe that unless they have already been physically separated for eighteen months, they have to raise distasteful and nasty, fault-based allegations about their partner in order to dissolve the civil union. Such a result would be legally and socially unfortunate and unnecessary.
While the wording in N.J.S.A. 2A:34-2.1 may presently be unclear or misleading on the issue of irreconcilable differences, the development of case law interpreting the Act and legislative intent may in the interim help fill the void and provide public guidance on the issue. In this regard, the court notes that the law strongly favors and encourages civility between parties in family court. For this reason, from both a legal and social standpoint, no-fault domestic litigation is usually highly preferable to fault-based domestic litigation. This concept applies to all litigants who come to family court to dissolve a relationship, whether such relationship is
While some family court cases inevitably involve the raising and exploration of certain fault-based issues, litigants who wish to proceed along the more peaceful, no-fault route towards amicable resolution must have a fair opportunity to do so. It is fundamental that settlement of litigation ranks high in the public policy of this state. Ziegelheim v. Apollo, 128 N.J. 250, 263,
As a final point, the court notes that since enactment of the statutes at issue, and as a direct result of the U.S. Supreme Court case of United States v. Windsor, 570 U.S. —, 133 S.Ct. 2675,
For all of the foregoing reasons, the court concludes that under the most reasonable interpretation of existing statutory law, the family court has authority to dissolve a civil union based upon on the no-fault ground of irreconcilable differences. In the present case, the court hereby grants such relief by entering a dual judgment of dissolution, and wishes both parties well in their respective futures.