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Validity of Same-Sex Marriage/Divorce is a Tempest in a Teapot

Validity of Same-Sex Marriage/Divorce is a Tempest in a Teapot

Recent Canadian newspaper articles have covered the so-called “controversy” over same-sex marriage, and more particularly the issue of divorce for same-sex couples who were legally married in Canada. The media coverage included accusations that the government had done a “legal about-face” and a “reversal of federal policy” on the issue of same-sex unions.
The truth is, there is no “controversy” at all.

Rather, the media has effectively misunderstood the legal issues that arose out of the divorce petition that was filed recently in a Canadian court by a lesbian couple.  Although they live in another country, in 2005 they had availed themselves of Canada’s legalization of same-sex marriages and had come here to get married.   Six years later they concluded that the relationship wasn’t working, and they now wished to divorce here as well.  (The parties lived in Florida and England.   However – unlike in Canada – since neither of those jurisdictions recognized gay marriages, the couple could not get a divorce there).

The problem was that the couple had learned they could not divorce in Canada, because they did not meet the one-year residency requirement that was imposed by Canadian law on all couples, whether gay or not.   More importantly, they also did not meet the second requirement for a Canadian divorce:  that their marriage was legally recognized in their home countries.

As it happens, their marriage was not formally recognized in the place the couple did live (Florida and England again), so the thinking was that the Canadian court could not grant a legal divorce either.

This left the couple in an apparent legal Catch-22.

Unlike some of the inflammatory news reporting that has surrounding this quandary, none of this represents a change in government policy; rather it’s merely an unusual situation in which the application of and interplay between the laws relating to marriage that are set by individual countries have given rise to a minor “black hole” in one specific case.

Every country (in this case: Canada, England and the U.S.) will establish its own laws relating to marriage and divorce.   Sometimes legal difficulties do arise when a couple marries in one country, then chooses to divorce in another.  The problem is further compounded when parties marry in a country that they don’t actually live in for most of the time (for example, think: “quickie Vegas wedding”).

As applied to this case, the law states that the validity of the lesbian couple’s marriage is to be determined by the laws of the place each of the spouse’s place of residence before getting married, i.e. Florida and England.   So while Canada recognizes gay marriage, these other countries do not and they happen to be the jurisdictions in which the couple lives.   The resolution of the issue from a strict legal standpoint still has to be determined by the court hearing the divorce application.
These explanations as to the legalities may do little to assuage the public concerns raised by hasty and precipitous media reporting.   Moreover in the broader sense the matter will soon be put to rest, as the federal Justice Minister has assured Canadians that government will be changing the law to confirm that existing same-sex marriages are deemed valid.

But there is really no legal “controversy” or “policy reversal” at play here.  Still, it has been interesting to watch the media try to stir one up.

To see the full-text of the newspaper article referred to:

http://www.theglobeandmail.com/news/politics/ottawa-does-about-face-on-same-sex-marriage-for-non-canadians/article2299574/