No, Canada has not just unilaterally nullified thousands of American same sex marriages. Here is what happened. A lesbian couple got married in Canada in 2005, separated in 2009 and are now living in the UK and Florida. They want a divorce in Canada. But, the Divorce Act has a 1 year residency requirement. For a court to have jurisdiction to grant a divorce, one of the parties has to have been living in Canada for a year. So, they challenged the constitutionality of that residency requirement.
Lawyers for the federal government did what lawyers for the federal government do: they are defending the constitutionality of the Divorce Act. They are saying that it is perfectly legitimate to have a 1 year residence requirement. But, then, they said a bit more. The lawyers also argued that a Canadian court would have no jurisdiction to grant a divorce because the couple did not have a valid marriage. This is where the argument gets weird. A marriage entered into in Canada is not valid in Canada? Well, according to the rules of private international law on marriage recognition, the validity of a marriage is determined by the law of domicile, not the law of celebration; in other words, where the couple lives, not where they got married. This is a longstanding rule of law. So, for the lesbian couple, because neither Florida nor the UK recognize the validity of the marriage, its not a valid marriage in Canada. This may be a paradoxical argument, maybe even a hypocritical one, given our luring of marriage tourist dollars. But, its also an entirely legally accurate one.
So, what to do? The Minister of Justice, after the outpouring of outrage at the government’s apparent about-face on same sex marriage, says that he will look into how we can ensure that non resident same sex couples who married in Canada can get divorced in Canada.
There are some pretty simple solutions. First, he could call off the dogs. Tell the federal Department of Justice lawyers to stop throwing everything they’ve got at this case to make sure that the lesbian couple can’t get divorced.
Second, he could amend the Divorce Act to eliminate the 1 year residency requirements. He could do it for everyone, or he could perhaps create a particular exemption for non-residents.
Alternatively, on a go forward basis, he could add a residency requirement for Canada’s marriage law. Most other countries and states that recognize same sex marriage do impose a residency requirement. This way, their marriage and divorce laws align. But, if he choose this option, he would be seen as restricting same sex marriage rights, and he would still have to figure out how to deal with the thousands of already married same sex foreigners.
Third, he could direct his lawyers to ignore the arcane rules of private international law on marriage recognition in the context of same sex marriage, for the specific purposes of divorce in Canada. There are plenty of arguments that could be made as to why ignoring this rule in this context would actually be consistent with Canadian constitutional values, as well as Canadian public policy on the recognition of foreign law.
Finally, he could have Canada sign the Hague Convention on Celebration and Recognition of Marriages and Divorce. The Convention would make the law of the place of celebration the determinant of the validity of a marriage. Only six countries have signed to date. This would put the old private international law rules to bed permanently. He could even amend the Civil Marriage Act and the Divorce Act to specifically endorse the law of the place of celebration.