Foreign Gay Divorce in Canada

August1991 · January 12, 2012

The wonder of unintended consequences! Or, “Oh what a tangled web we weave, When first we practice to deceive”.

The issue is not gay marriage. It is gay divorce and specifically, the divorce of two foreign gays who married in Canada. Martha McCarthy, a lawyer in Toronto, is acting on behalf of two foreign women in their divorce case. There's a problem however. Neither woman is resident in Canada and Canada's (federal) divorce law requires that at least one of the spouses reside in a province for at least 12 months.

In a response to Ms. McCarthy’s court application, federal lawyer Sean Gaudet tied the federal position to two central propositions. First, he said, couples who came to Canada to be married must live in the country for at least a year before they can obtain a divorce. Second, same-sex marriages are legal in Canada only if they are also legal in the home country or state of the couple.

G & M

Canadians frequently marry abroad. (For example, our own Minister of Defence recently married in Mexico.) If Mackay or his spouse decides to divorce in a few years, will either go to a Mexican court to break their marriage contract? Where a marriage takes place is distinct from where a divorce takes place.

I think the question here is whether we should change our divorce law to accommodate foreigners who happened to come to Canada to get married. Specifically, should we remove the residency requirement and in effect allow anyone to fly in and apply for a divorce?

In Canada, this problem is more thorny because the terms of divorce are determined at the provincial level. At present, a divorcing couple must apply for divorce in the province of residency. If we remove the residency requirement, then people could apply for divorce in any province.

This is a legal mess. And sadly, the issue has all the makings of becoming AGMT (another gay marriage thread).

Edited January 12, 2012 by August1991

scribblet · January 12, 2012

I don't see why we should change our divorce laws or residency requirements for foreigners. The only legitimate point IMO is that it would be nice if they were told about residency requirements re divorce ahead of their marriage.

This will be turned into an anti Harper thread and gay marriage thread no doubt :rolleyes:

I also notice that this was a provincial issue the the province kicked it up to the feds :lol:

Edited January 12, 2012 by scribblet

August1991 · January 12, 2012

The only legitimate point IMO is that it would be nice if they were told about residency requirements re divorce ahead of their marriage.

I agree and more generally, gays who marry in Canada should understand that their union may or may not be respected abroad. In an ideal world, everyone would know this.

Let's see however where this issue goes.

scribblet · January 12, 2012

It is being presented in some areas as a 'rescinding of gay marriage', yet I don't see that. To me it's about divorce and residential requirements only. I would also think that gay foreigners coming here to get married would take the time to research their legal status for both marriage and divorce before entering into it.

Obviously though, it's not clear, but this is the perfect opportunity for the conspiracy theorists and the sky is falling crowd to push their 'hidden agenda' narrative and blame it all on Harper.

fellowtraveller · January 12, 2012

I don't undertsand what the issue is here.

The divorce laws apply to everybody that is married, it does not matter if they are gay, foreigners or Canadian citizens as the residency rerquirement applies to all. Why would we differntiate for any of those groups?

Evening Star · January 12, 2012

It's not just the divorce issue though. This is a key point:

a Department of Justice lawyer says their marriage is not legal in Canada since they could not have lawfully wed in Florida or England, where the two partners reside

Until now, apparently, it has been policy to accept these marriages - 5000 of them, according to the article - as legitimate. So for the government to now say that they were never legitimate even in Canada does seem a bit nasty and at least like an "about-face" in the author's words.

August1991 · January 12, 2012

Until now, apparently, it has been policy to accept these marriages - 5000 of them, according to the article - as legitimate. So for the government to now say that they were never legitimate even in Canada does seem a bit nasty and at least like an "about-face" in the author's words.

That's how the G&M journalist chose to word the argument of Sean Gaudet, the Justice lawyer in this case.

I'd like to see the actual wording of Gaudet's argument.

-----

As I understand it, two foreigners who marry in Canada are, well, legally married in Canada. Other jurisdictions may not recognize the marriage and hence in that sense, they are not married.

For example in Saudi Arabia, it is possible for a man to marry two women but Canada will not recognize the second marriage. It is not possible for the husband and second wife to divorce in Canada. They have a legal marriage in Saudi Arabia but not in Canada.

It seems to me that Gaudet is correct to draw this distinction because in effect, a married gay couple can divorce in Canada (if they are resident here) or they can divorce abroad (if they live in a jurisdiction that recognizes gay marriage). If neither is true, then they are not married.

fellowtraveller · January 12, 2012

It's not just the divorce issue though. This is a key point:

Until now, apparently, it has been policy to accept these marriages - 5000 of them, according to the article - as legitimate. So for the government to now say that they were never legitimate even in Canada does seem a bit nasty and at least like an "about-face" in the author's words.

Good pint, though I will bet that the Dept of Justice will fail on the second point.

In a response to Ms. McCarthy’s court application, federal lawyer Sean Gaudet tied the federal position to two central propositions. First, he said, couples who came to Canada to be married must live in the country for at least a year before they can obtain a divorce. Second, same-sex marriages are legal in Canada only if they are also legal in the home country or state of the couple.

The marriages were perfectly acceptable in Canada at the time of marriage, assuming that neither participant was already married ie not a bigamist. And if the marriage was acceptable, so is the concept of divorce though the residency requirement applicable to all genders would still apply too. Justice will get creamed in court on the second point.

The_Squid · January 12, 2012

The gov't has made a U-turn apparently. No longer will those marriages be null & void.

http://montreal.ctv.ca/servlet/an/local/CTVNews/20120112/harper-same-sex-marriage-debate-questions-120112/20120112/?hub=MontrealHome

A mean-spirited trial-balloon to gauge reaction? Or just a SNAFU from the Harper Gov't?

WWWTT · January 12, 2012

I agree and more generally, gays who marry in Canada should understand that their union may or may not be respected abroad. In an ideal world, everyone would know this.

Let's see however where this issue goes.

Aswell many inter-racial,inter-religious marriages are not recognized in some countries around the world!

Are you saying that these other countries should influence us in Canada in some way?

WWWTT

TimG · January 12, 2012

The divorce laws apply to everybody that is married, it does not matter if they are gay, foreigners or Canadian citizens as the residency requirement applies to all. Why would we differentiate for any of those groups?

What the anti-Harper yahoos forget is there good reasons for the residency requirements since a divorce involves dividing assets and the jurisdiction matters. If you remove the residency requirements then one spouse could file for divorce in the jurisdiction that maximizes their financial advantage at the expense of their ex-partner. The most fair way to resolve this is to use the jurisdiction where the couple resides at the time of divorce.

Evening Star · January 12, 2012

What the anti-Harper yahoos forget is there good reasons for the residency requirements since a divorce involves dividing assets and the jurisdiction matters. If you remove the residency requirements then one spouse could file for divorce in the jurisdiction that maximizes their financial advantage at the expense of their ex-partner. The most fair way to resolve this is to use the jurisdiction where the couple resides at the time of divorce.

I don't think anyone has been complaining about the residency requirements for divorce. It's the question about foreign couples who have already been married in Canada that concerns people.

TimG · January 12, 2012

I don't think anyone has been complaining about the residency requirements for divorce. It's the question about foreign couples who have already been married in Canada that concerns people.

As someone mentioned, the actual argument used by the government lawyer needs to be presented. e.g. it is perfectly reasonable to claim that a couple does not need a divorce if the jurisdiction where there are resident does not recognize gay marriage. That is quite different from the spin appearing the papers. Edited January 12, 2012 by TimG

Evening Star · January 12, 2012

As someone mentioned, the actual argument used by the government lawyer needs to be presented. e.g. it is perfectly reasonable to claim that a couple does not need a divorce if the jurisdiction where there are resident does not recognize gay marriage. That is quite different from the spin appearing the papers.

That's a reasonable point but I can still see why they might want their Canadian marriage annulled as well.

Evening Star · January 12, 2012

I mean, I agree that it's fair to wait until we hear the actual argument presented by the govt lawyer.

August1991 · January 13, 2012

The gov't has made a U-turn apparently. No longer will those marriages be null & void.

The government did not make a U-turn. Here is what the CTV article reports:

Non-resident couples who marry here must live in Canada for one year before they can legally divorce. The lesbian couple at the centre of the controversy has launched a constitutional challenge of that provision in the Ontario Superior Court of Justice.
Nicholson said he will be "looking at options to clarify the law so that marriages performed in Canada can be undone in Canada."

----

I don't think anyone has been complaining about the residency requirements for divorce.

But from our perspective, that is the heart of the problem. We allow these foreigners to marry under Canadian law but then impose a residency requirement if they choose to divorce here.

These two women have no legal way to divorce and the justice lawyer was correct to raise this point.

This case poses a serious legal problem. We have two women who are legally married under Canadian law but who are unable to obtain a divorce anywhere. They don't meet Canadian residency requirements for divorce here and neither lives in a jurisdiction that recognizes same-sex marriage so they cannot obtain a divorce in Florida or England.

If Nicholson changes the divorce residency requirement for same-sex couples who marry in Canada, then presumably the same change would apply to different sex couples. IOW, couples could shop around for the best jurisdiction for a divorce and have their lawyer file on their behalf.

Edited January 13, 2012 by August1991

August1991 · January 13, 2012

Aswell many inter-racial,inter-religious marriages are not recognized in some countries around the world!
Are you saying that these other countries should influence us in Canada in some way?

No, I am simply saying that what we consider a marriage may not be shared elsewhere in the world.

But your point raises another interesting facet to this case.

Proponents of same-sex marriage often made the argument that in the past, jurisdictions often forbade marriage between people of different races. The implication was that same-sex marriage will eventually be as accepted as mixed-race marriages are now.

This case illustrates how that comparison is misguided. After marriage, these two women returned to live ina jurisdiction that does not recognize same-sex marriage. Indeed, that is the source of their current problem. They have no way to dissolve their marriage.

In the case of mixed race marriages 50 or 60 years ago, how many such couples moved back to jurisdictions that did not recognize their union? More likely, they faced true discrimination there and had no desire to live in such an environment.

Edited January 13, 2012 by August1991

g_bambino · January 13, 2012

Indeed, that is the source of their current problem.

That isn't the source of their problem. Canada's divorce law is the source of their problem. Period.

August1991 · January 13, 2012

That isn't the source of their problem. Canada's divorce law is the source of their problem. Period.

So now, we Canadians must change our divorce law to accommodate foreign gays.

And let me add: Foreign gays who freely choose to return to live in the jurisdictions where they are supposedly oppressed because they cannot marry.

In this 21st century debate, we are far, far from escaped slaves, mixed racial marriages, Jim Crow and sitting at the back of the bus. We are far, far from Lincoln, Voltaire and Galileo.

Edited January 13, 2012 by August1991

cybercoma · January 13, 2012

It's not just the divorce issue though. This is a key point:

Until now, apparently, it has been policy to accept these marriages - 5000 of them, according to the article - as legitimate. So for the government to now say that they were never legitimate even in Canada does seem a bit nasty and at least like an "about-face" in the author's words.

But they had no problem collecting the legal fees.

g_bambino · January 13, 2012

So now, we Canadians must change our divorce law to accommodate foreign gays.

We must? And only for foreign "gays"? It might be a good idea to change the divorce law for everyone's benefit; the government's and any couple married in Canada, whether residents, citizens, or foreigners, and of any self-applied sexual label or none. Then again, it might not.

[ed: +]

Edited January 13, 2012 by g_bambino

g_bambino · January 13, 2012

As I understand it, two foreigners who marry in Canada are, well, legally married in Canada.

And so they should be able to seek divorce in Canada, which the couple in question are doing. However, because of the way the divorce law is worded, they cannot without having lived a year in Canada, and they are mounting a Charter challenge against the divorce law as it stands, which, in itself, seems silly. However, the Crown attorney in this case has exacerbated the issue by making the inane argument that the couple can't be divorced in Canada because they aren't married because their respective home jurisdictions don't recognise same-sex marriage (though Britain does have same-sex civil unions, which are in law equated with marriage), leading all the anti-Harper conspiracy theorists out there (and there are a shocking number of them, even amongst what seem to be well educated people) to think they've finally discovered irrefutable proof of the present Cabinet's surreptitious and apparently highly Machiavellian anti-homosexuality agenda. The whole thing has gone off the rails and I'm shocked at the speed at which that's happened.

[ed.: +]

Edited January 13, 2012 by g_bambino

August1991 · January 13, 2012

We must? And only for foreign "gays"? It might be a good idea to change the divorce law for everyone's benefit; the government's and any couple married in Canada, whether residents, citizens, or foreigners. Then again, it might not.

Bambino, you raise a good question that I wonder about too.

If two people can marry here, why can't they divorce here too? And my simple answer is that if it's hard to arrive at a deal and sign a contract, it's even harder to breach or break a contract.

----

More broadly, what effect would such a change in residency have on the rest of us?

Or as I once said to MapleSyrup and BlackDog (both posters here), if it's mayonnaise, it has whole eggs. Otherwise, it's just salad dressing. Link

Gay marriage is not the same as female-male marriage.

Edited January 13, 2012 by August1991

dre · January 13, 2012

Divorce should be easy and cheap.

All these people are asking to do is ask the government to recognize their wish to disolve a private contract between them. If the couple is able to agree to the terms of the divorce without litigation, then hell... let em do it online for a 20 dollar administrative fee.

It makes no damn sense for the government to insist on continuing to recognize a contract that both parties have voluntarily disolved.

Divorce litigation is a different question. If they want to scrap it out over assets and property then that stuff can get pretty expensive and they should do it wherever they pay taxes.

August1991 · January 13, 2012

Divorce should be easy and cheap.

I fundamentally disagree. Breach of contract (divorce) should be costly and difficult, as an incentive to avoid opportunistic contracts (unhappy marriages).

When you date or sleep around, you are free to choose. But when you marry, you cross the Rubicon, burn your bridges and commit.

Edited January 13, 2012 by August1991