Expanding the Duration of Marriage in Ohio Same-Sex Divorce Cases

Ohio’s Eighth District sets legal foundation for dividing pre-marital property in same-sex divorce cases in Ohio.

Supreme CourtLast year, Ohio’s Eighth District Court of Appeals issued a ruling in Al-Mubarak v. Chraibi that may add years to the duration of a same-sex couple’s marriage for purposes of divorce. The ruling would allow same-sex couples in a divorce to claim that property accumulated prior to their legal marriage date is marital property and subject to division by the court.

Since 1991, when Ohio abolished common-law marriage, Ohio courts have generally held that the duration of a marriage for purposes of divorce begins on the date the parties are legally married and ends when the parties get divorced.

Under this general rule, the duration of marriage for same-sex couples could not begin until at least June 26, 2015, when same-sex marriages became legal in Ohio. For same-sex couples who had been living together prior to June 2015, the general rule would mean that a divorce court may determine the parties were married for only 1 or 2 years even though they had been living together in a monogamous relationship for years or even decades prior to June 2015.

Al-Mubarak v. Chraibi changes the legal landscape for long-term same-sex couples in Ohio. In Al-Mubarak, the parties had arranged to be married in 2001. However, during the middle of the wedding ceremony, the parties discovered they had failed to obtain a marriage license, which was required to be legally married. The parties continued with the religious wedding ceremony anyway, despite the fact that they could not be legally married that day.

The parties lived together and held themselves out to be husband and wife for years after the religious wedding ceremony in 2001. The parties moved to Ohio in 2002 and had a child in 2005. The parties finally obtained a marriage license and were legally married in Ohio in December 2010, nine years after their original wedding ceremony.

Husband filed for divorce in 2011. During the divorce, Husband argued that the parties were not married until 2010, and that the division of property should be determined based upon the 2010 marriage date. Wife argued that the parties’ marriage began in 2001, and that the marriage should be considered a 10-year marriage.

The trial court held that, for purposes of property division, the parties’ marriage began in 2001 when the parties had their religious wedding ceremony. The Eighth District Court of Appeals affirmed, ruling that the Trial Court has broad discretion to determine what is equitable upon the facts of each case, and that R.C. 3105.171 gives courts authority to use a date other than the actual marriage date for a particular purpose.

The majority opinion also cited to two other Eighth District cases, Bradley v. Bradley and D’Hue v. D’Hue, as precedent in support of giving allowing trial courts broad discretion to set de facto marriage dates that pre-date a couple’s date of legal marriage.

I predict that Al-Mubarak will have a significant legal impact on same-sex divorces where the parties lived together before their marriage was legally recognized and where their pre-marital relationship was akin to that of a married couple.

However, the issue far from settled. Other Ohio appellate courts have established bright-line rules that conflict with the Eighth District’s position, and there will be plenty of litigation on this issue as more and more Ohio same-sex couples get divorced in the coming years.