Voiding of Lesbian Divorce Upheld

In a case involving a trial judge who granted a divorce to a couple he did not know included two women, the Oklahoma Supreme Court unanimously upheld that judge's decision to vacate his order granting the divorce.

But the high court also found that Cait O'Darling is entitled to a hearing before her case is dismissed, so in its July 1 ruling it reversed the trial court action in throwing the case out upon learning that Cait and Stephanie O'Darling were both women.

But Oklahoma Supreme Court Grants Second Chance

Justice Rudolph Hargrave's opinion for the Supreme Court is sketchy about the facts in the case. When Cait O'Darling filed a divorce petition in the Tulsa County District Court in July 2006, it identified the couple solely as C. O'Darling and S. O'Darling, without any indication of their genders, and stated the couple married in Toronto in 2002.

Papers were served on S. O'Darling, who filed no response, but she did sign a Decree of Dissolution of Marriage, which Cait presented to District Judge C. Michael Zacharias at a November 2006 hearing. Viewing the case as a routine uncontested divorce, Zacharias signed a divorce decree that day.

Soon afterward, however, a reporter from the Tulsa World contacted the court asking about a same-sex couple who had been given a divorce. The court clerk contacted Cait's attorney, who confirmed that the O'Darlings were both women. Just days after the divorce decree, Zacharias vacated it and dismissed Cait's petition.

Cait appealed to the Supreme Court, complaining that the judge's action violated her right to due process of law. According to Justice Hargrave's opinion, Cait argued she had not been given the opportunity to present evidence about the legality of her marriage when Zacharias dismissed her petition.

The case immediately generated notoriety, drawing amicus briefs from the Oklahoma Family Policy Council, the Becket Fund for Religious Liberty, the National Legal Foundation, and the Alliance Defense Fund, all organizations opposed to same-sex marriage.

No gay rights groups filed briefs in support of Cait, presumably leery of getting involved in a case where it appears that a deliberate attempt had been made to mislead the court in a state with a Defense of Marriage Act.

Hargrave noted that the trial judge had 30 days to correct or vacate his order if any irregularity or fraud were discovered and also pointed out that state disciplinary rules governing lawyers require them not to engage in deception of the court. The Supreme Court concluded that the failure to disclose that the marriage involved two women was an irregularity.

At the same time, the high court found that dismissing Cait's petition ignored Oklahoma precedent that a party has a right to be heard before a court takes action that affects that petitioner's property interests. The high court ordered the trial court to give notice to both of the women and the state attorney general's office and afford Cait the opportunity to argue that she is entitled to relief.


But, do Cait and Stephanie O'Darling have any real hope that they may get some kind of relief from the court terminating their marriage? One curious question is whether they married legally in Canada or engaged in a similar deception there. Provincial courts in that country did not put Canada on the road to marriage equality until the spring of 2003; the couple says they married in December 2002, at a time when the only trial court that had ruled in favor of same-sex marriage, in Ontario, had stayed its order pending appeal.


Several marriages performed during this period at Toronto's Metropolitan Community Church were later retroactively validated, but separate from that it seems unlikely that an Oklahoma lesbian couple could have obtained a valid marriage license there in December 2002. Clearly some basic facts have to be sorted out at the hearing to come.


But even if the couple's marriage is found valid under Canadian law, Oklahoma's express ban on recognizing marriages of same-sex couples poses a problem. One might think that a state opposed as a matter of policy to same-sex marriages would be eager to void any such union by its residents.


But the real question is whether the “benefit of divorce” — having an orderly judicial process to dissolve a legal relationship, distribute the assets, and determinate the two parties' responsibilities — will be made available to this former lesbian couple. Many gay marriage opponents would view that as placing Oklahoma on an unacceptable slippery slope.