In a NY 2d Dept decision published on Monday, Davis v. Davis (NYLJ 11/23/09), the Court rejected the argument that the concept of constructive abandonment should not be expanded to include social abandonment as well as sexual.
The basic idea is this: New York is, I believe, the only remaining state in the union that still refuses to recognize irreconcilable differences as grounds for divorce, and requires a showing of fault (or a separation agreement and a year’s wait) instead. And so, if you go into the matrimonial parts in New York courts, it sometimes seems that no one in New York is having sex with their spouse.
Abandonment as a ground for divorce means pretty much what it looks like – when your spouse moves to Australia without your consent and ditches you for over a year, they’ve abandoned you. In New York, abandonment has long since been expanded to encompass constructive abandonment, which is when your spouse refuses to have sex with you for over a year, so long as you’ve asked repeatedly and there are no health issues getting in the way. Sexual intercourse is apparently so key to the marriage contract that refusing sex constitutes abandoning the marriage, as surely as an unauthorized move to the other side of the world.
In Davis, the plaintiff argued her husband’s refusal to engage in social interaction with her constituted another form of constructive abandonment. She alleged that he refused to celebrate holidays with her, attend family functions or church with her, eat meals together, left her in the emergency room once, and otherwise ignored her.
The Second Department held that having a loving relationship with your spouse is less integral a provision of the marriage contract than is having sex with your spouse.
[W]e do not accept the argument that a social abandonment of one spouse by another is a provision of the marriage contract that necessarily equates with a spouse’s refusal to engage in sexual relations. As discussed by the Court of Appeals in Diemer, “[s]exual relations between man and woman are given a socially and legally sanctioned status only when they take place in marriage and, in turn, marriage is itself distinguished from all other social relations by the role sexual intercourse between the parties plays in it” (Diemer v. Diemer, 8 NY2d at 210).
The Court found that the social abandonment theory was just a clever attempt to allege irreconcilable differences, which are still not a ground for divorce in New York.
Reading the Davis decision is troubling in light of the same-sex marriage debate. Contrast the language above with the famously strong language from Goodridge v. Dept. of Health in Massachusetts:
Marriage is a vital social institution. The exclusive commitment of two individuals to each other nurtures love and mutual support; it brings stability to our society… Civil marriage is at once a deeply personal commitment to another human being and a highly public celebration of the ideals of mutuality, companionship, intimacy, fidelity, and family…. Because it fulfills yearnings for security, safe haven, and connection that express our common humanity, civil marriage is an esteemed institution, and the decision whether and whom to marry is among life’s momentous acts of self-definition.
Is marriage a social institution celebrating the ideals of companionship and family? Or is it a contract where sex is a material promise, but social interaction is not? I would love to see more same-sex marriage proponents take on the issue of no-fault divorce here in New York, as a way of addressing how our society frames the meaning and purpose of marriage.
The full decision in Davis is available
Filed in matrimonial
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Tagged lgbt, matrimonial
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