Media Misunderstands Same-Sex Divorce Issue

Was there anyone naive enough not to realize that same-sex marriage would surely bring with it other legal complexities? Certainly, the first issue that came to my mind was “how do these couples get divorced?”

That question was initially answered in 2004 by a judge in Toronto who refused to grant a divorce to a lesbian couple on the basis that the Divorce Act only applied to spouses who were defined in the Divorce Act as either a man or a woman married to each other. The Canadian couple in question had married on June 18, 2003 but separated five days later, having lived together for 10 years before their nuptials.

Later in 2004 a higher Ontario court overruled the earlier decision and pronounced the first same-sex divorce in Canada and in the world.

The Court held that the definition of spouse in the Divorce Act was unconstitutional and discriminatory and ruled that the legislation must be read to include same-sex couples.

Fast forward to the most recent same-sex divorce dilemma which unfolded in Ontario this week. You may recall the influx of gays and lesbians to Canada to exchange marriage vows after same-sex marriage was legalized.

One of those couples recently sought a Canadian divorce in Ontario. The couple, who live in Florida and England, were met by an argument brought by lawyers from the Department of Justice, that their marriage was not valid in Canada unless it was also valid in Florida and England. Of course, we know that neither Florida or England have legalized same-sex marriage.

Their reaction? You’re telling us this now! But there was still more. Canada’s Divorce Act requires one of the spouses to reside in Canada for one year prior to the granting of a divorce. This would also be tricky for couples who only came to Canada to marry and never contemplated a year of residence in Canada to obtain a divorce.

The barrage of questions posed by the media swarm included whether the Department of Justice’s legal argument reflected government policy and had this policy been surreptitiously changed by the government to thwart the rights of foreign couples who married under Canada’s same-sex marriage laws?

Interesting questions but not the right ones to ask. The answer to the Department of Justice’s legal position is found in a complicated area of law referred to as “conflicts of law”, where rules involving foreign jurisdictions, foreign law and foreign litigants have been formulated to assist in resolving the thorny issues raised by inter-jurisdictional legal questions.

The short answer is that the legal position espoused by the Department of Justice has nothing to do with policy and everything to do with well-settled international law.

It should have been apparent to foreign couples marrying in Canada that their marriages were fraught with problems. The dismay expressed by the media and critics of the Harper government over this non-issue reinforces the notion that a little legal knowledge is a dangerous thing.

Lawdiva aka Georgialee Lang


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