The gay divorce

VICTORIA (CUP) – Headlines like “Thousands of same-sex marriages performed in Canada may not be legal” (National Post) provoked an intense response from citizens on Jan. 12. The outcry arose after a lawyer for the Department of Justice told courts a lesbian couple could not get a divorce here, even though they had married in Canada in 2005. He said because their respective places of residence (Florida and the U.K.) do not recognize the union, they were never actually married.

Thankfully, the Harper government has since backtracked on its lawyer’s statements. Justice Minister Rob Nicholson said on Jan. 13, “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.” The news came as a relief to the 5,000 same-sex couples who have come from other countries to marry in Canada since the legalization of same sex marriage here in 2005.

But this doesn’t mean these couples are out of the woods yet. If the Civil Marriage Act changes but the Divorce Act does not, they may still have trouble obtaining a divorce – not because of the legality of their marriage, but because of the length of their stay in Canada.

Canadian law requires that one or both spouses must live in Canada for at least one year before they can divorce. This isn’t a problem for heterosexual couples who move away and then seek divorce, because they can usually divorce in their current jurisdiction. However, since same-sex marriages aren’t legal in many other jurisdictions, neither is same-sex divorce.

If Canada grants these couples the right to marry, it can’t very well turn around and say they were never married, or deny them a divorce. Most people – including the government – seem to be on the same page on that front. The question is whether courts should hold these couples to the one-year residency requirement.

If there were no residency requirement at all, Canadian courts could be bogged down with people from all over the world shopping for Canadian divorces that may be cheaper or work out more in their favour than a divorce in their own jurisdiction. If, however, our government were to waive the requirement only for couples who were legally married in Canada and – here’s the important bit – can’t reasonably be expected to carry out the divorce elsewhere, it would come close to an even playing field for same-sex and heterosexual couples in Canada. That is why Canada legallized gay marriage in the first place, is it not?

Even if one member of a same-sex marriage is willing to put their life on hold and live in Canada for a year, they may not be able to because of other legal restrictions. An American can only live in Canada for six months without a visa, and even if they manage to obtain a visa, they may not be allowed to work. Essentially, only someone with expendable wealth and a lot of time on their hands could meet the residency requirement in many cases. Do we really want to be a country where equal rights are contingent on money? Those aren’t equal rights at all.

Until the one-year residency requirement is waived for same-sex couples –and it should be – Canada has an obligation to make same-sex couples from abroad aware of the murky situation. Any couples considering coming here to marry should be duly informed that a divorce may be near-impossible to obtain at the moment – but only for the moment. The government should modify the Divorce Act as well as the Civil Marriage Act, and with expediency.

Shandi Shiach
Vanessa Annand
The Martlet (University of Victoria)