There’s been much brouhaha in the news the past couple of days about the status of same-sex couples who came to Canada to get married because they were unable to legally do so in their home country. I’ve been trying to untangle the mess and interpret what it all means, because it’s not completely straight-forward. I hope this helps; if I’ve gotten anything wrong, feel free to correct me in the comment section. There are two separate (but related) issues here:
- Does Canada recognize the validity of same-sex unions for visiting couples? (relevant law: Civil Marriage Act)
- Can non-Canadians who got married in Canada get a divorce? (relevant law: Divorce Act)
As for the first question, the answer, as of this writing, is: No. But according to an article in the National Post, that’s about to change. Under current laws, even though Canada is willing to go ahead and marry off gay couples from out-of-country, if they are from somewhere where same-sex marriage is not legal, then Canada doesn’t legally recognize the marriage.
This little piece of fine-print was apparently glossed over by thousands of gay couples who traveled to Canada to get married. It was brought to light when a lesbian couple who married in 2005 separated in 2009 and sought a divorce. One woman from Florida was unable to obtain it there because same-sex marriage is not recognized in that state. The other woman, from the UK, could not get it there because, even though same-sex civil unions are valid in her country, they did not recognize the Canadian marriage.
When the couple went to court to seek a Canadian divorce, they were shocked to find they couldn’t get it there either. And this is where it gets a little confusing. Under the Divorce Act, a couple married in Canada must have lived in Canada for at least one year to be eligible for a divorce. The couple was in a catch-22. They were married, but 1) they hadn’t lived in Canada for a over a year, and 2) their marriage was found to be invalid because the place of residence (Florida) doesn’t recognize it.
A senior government official today said:
We want to make it very clear that in our government’s view, these marriages should be valid. That’s why we will change the Civil Marriage Act so that any marriages performed in Canada that aren’t recognized in the couple’s home jurisdiction will be recognized in Canada.
And according to the National Post article, the amendment will be happening today, so that any couple who visited Canada to get married, regardless of the law of their place of residence, will be valid in Canada. (You’re all good Dan Savage!)
Phew. But this still doesn’t change anything about a same-sex couple wanting a Canadian divorce. Under the Divorce Act, which the government has no plans on changing anytime soon due to the complicated nature of the legislation, if you haven’t lived in Canada for more than a year, you cannot get divorced here. Period.
[Feature photo: joseanavas]