July 16, 2008
Oklahoma Supreme Court Vacates Dissolution of Marriage Between Same Sex Couple
A lesbian couple got married in Canada in 2002. One party to the marriage filed for divorce in Oklahoma in 2006. The divorce was granted in November of 2006. In January, 2007, the trial court vacated the divorce decree due to the fact that the marriage involved a same sex couple. O'Darling v. O'Darling, 2008 WL 2600682 (Oklahoma July 1, 2008) (unpublished opinion).
On July 1, 2008, the Oklahoma Supreme Court held that "the trial court properly vacated the decree of dissolution of marriage but erred in dismissing the petition for dissolution of marriage" because the parties to the divorce were entitled, under due process, to have notice and a hearing before the petition was formally dismissed by the court. Id. at *1.
Interestingly, the court did not address whether a same sex marriage from an out-of-state jurisdiction would be appropriately recognized in Oklahoma. Rather, the court simply stated that the district court could properly vacate an order that was obtained by fraud or mistake (here, the mistake/fraud being that the court was unaware that the marriage involved two women and not a man and a woman). Id. at *2.
However, because Oklahoma has a "mini-DOMA" it is quite clear that the State would not recognize out of state same sex marriages. See Andrew Koppelman, The Difference Mini-DOMAs Make, 38 Loy. U. Chi. L.J. 265, 266 n.4 (2007).