Same-sex couple must consciously uncouple before they can marry

On Behalf of | Nov 17, 2015 | Probate Litigation

In our last post, we talked about marriage annulment. Is it possible to annul an adoption?

This is a question that a Pennsylvania couple would like to have answered, though not because the adoption isn’t working out. The adoption was just a formality, a way to tie the couple together when the law barred them from marrying. We are talking about a same-sex couple.

Legally father and son since 2012, the two men have been partners for more than 40 years. Without the benefits that come with marriage, though, they wanted to take extra steps to ensure that they would be one another’s closest relative. As such, they could overcome barriers to being involved in medical decisions, for example, and some probate laws.

The its Obergefell v. Hodges decision last summer, the U.S. Supreme Court made same-sex marriage legal in every state. That was just the news the couple had waited for. They hurried down to pick up a marriage license.

Pennsylvania, however, is one of 25 states that does not allow close relatives to marry — even if the relationship is by adoption. Before they can tie the knot, they must untie the adoption. That requires court approval, though, and the judge in their case declined to approve the adoption annulment. He did not object to the idea, he said; rather, he felt this was a matter better heard in an appellate court. An appellate decision carries more weight than a trial court decision.

So the couple is waiting for the court of appeals to rule in the matter. Arguments are scheduled for December.

According to Wealth Management, 25 states prohibit marriages between people closely related through adoption. Michigan is not among them. For the time being, Michigan law is quite specific about the types of prohibited marriages: The statutes list prohibited marriages for men and women separately. A man cannot marry his son, for example, or his nephew. The prohibited relationships are ones of consanguinity — that is, there must be a common ancestor.

We should note that Michigan law has not been amended to conform to the Obergefell decision. As a result, we suggest that questions regarding specific situations be directed to a family law attorney.


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