In my previous blog about StatsCan no longer publishing divorce statistics, I touched on marriage and divorce, and how much our changing society, laws and mores make navigating our lives challenging at times, to say the least. As though to provide the perfect, made to order example, we have headlines screaming about a Gay Marriage Loophole, to use the media’s words, which, they said, negated the validity of some same sex marriages. And yet, to add to the confusion, the articles focused on a lesbian couple who wanted a divorce. Worse, most press reports were so poorly written or researched that they added to the misunderstanding and hysteria. But it’s an interesting and significant topic that demands clarification:
First, a little history: the Canadian courts essentially legalized same sex marriage in 2004, which, a year later, under The Civil Marriage Act, became law. In that same year, 2005, two women used the new legislation and were married in Toronto. They split up four years later, however, and pursued a divorce. This should present no problem, but they had also moved to Florida and the UK respectively, jurisdictions that don’t recognize their Canadian, same-sex marriage. This still should present no problem but here comes the so-called loophole in the legislation: The Civil Marriage Act states that couples must reside in Canada for a year in order for the marriage to be considered valid and that the Canadian marriage isn’t valid if it isn’t recognized by the jurisdiction in which the couple lives.
Move out of Canada to a place that does not recognize same sex marriage and apparently everything is null and void. To quote from the Globe and Mail, “’In this case, neither party [the two women] had the legal capacity to marry a person of the same sex under the laws of their respective domiciles – Florida and the United Kingdom,’ federal lawyer Sean Gaudet stated. ‘As a result, their marriage is not legally valid under Canadian law.’”
For all intent and purpose, legally speaking, suddenly these people who thought that they were married, were not, and to make the matter more bizarre, they also couldn’t get a legal divorce. Of course, if you really aren’t married, then you can’t be divorced, but that begs the question and certainly was not acceptable to the 15,000 gay couples who have been married in Canada since the 2005 legislation, and especially not acceptable to the third of them, who according to reports, are from outside of Canada.
Backing away from the Sean Gaudet statement, came news from Justice Minister Rob Nicholson that a bill to amend the Civil Marriage Act would close this loophole, allowing for a “new divorce process that allows a Canadian court to grant a divorce to non-resident spouses who reside in a state where a divorce cannot be granted to them because that state does not recognize the validity of their marriage,” as long as the spouses have fulfilled the basic requirements of having lived “separate and apart,” for a minimum of one year before the divorce is requested.
This law does not deal with property, custody or any other factors beyond the actual divorce, the government reasoning that such legalities are best left to the jurisdictions where the people reside. But as far as Canada is concerned, it’s case closed.
Usually, marriage comes first, then divorce. But in this particular chicken or egg game, it was the request for a divorce that raised the issue of marriage, and in order to resolve the divorce, it was necessary to first refine the marriage legislation.
Indeed, we live in complicated, but interesting times.