The very first point that a federal government lawyer makes in a case in Toronto involving a non-resident same-sex couple that wishes to divorce here is that they cannot divorce in Canada because they were never legally married to begin even though the couple came to get married after same-sex marriages were made legal. Confused? Here’s the paragraph that lawyer Sean Gaudet makes to the court:
In order for a marriage to be legally valid under Canadian law, – the parties to the marriage must satisfy both the requirements of the law of the place where the marriage is celebrated with regard to the formal requirements, and the requlrements of the law of the domicile of the couple with regard to thelr legal capacity to marry one another.
Gaudet provides no citations or case law to back up the essential assertion in this paragraph that there is a two-part test for Canada to determine if any given marriage is legal. First: In the jurisdiction where the marriage was performed, is it legal for these participants to married? Second: In the jurisdiction where the marriage participants are living at the time of their marriage, is it legal for these participants to be married?
In the case at hand, we have a same-sex couple who got married in Canada but at the time of their marriage, their place of residence was in Florida and the United Kingdom.By Gaudet’s reasoning, the court should declare that this marriage never had legal status in Canada because:
Test 1: The marriage was legal in the jurisdiction (Canada) where the marriage was performed.
Test 2: Two same-sex partners cannot be married in the jurisdiction where they live.
Failing either part of this two-part test, in Gaudet’s and the government of Canada’s view, means you are not legally married.
In the case at hand, the same-sex couple are not only non-residents, they are non-citizens.
But let’s take Gaudet’s logic further. Two gay men, after spending a life together, retire, like many Canadians, to Florida. They sell their home in Canada and establish residency in the Sunshine State. They visit friends in Canada from time to time but they now live in Florida. After a period of time, there they decided to get married and return to Canada for that ceremony. Even though they are Canadian citizens, the Government of Canada would have to declare their marriage has illegal because:
Test 1: The marriage was legal in the jurisdiction (Canada) where the marriage was performed.
Test 2: Two same-sex partners cannot be married in the jurisdiction where they live.
And this, then, is at the heart of the concern by any same-sex couple — be they Canadians, Americans, Australian or what have you — who can not provide that their “domicile” was in Canada at the time they got married in Canada. If, at the time of their same-sex marriage in Canada, they were living somewhere were two same-sex individuals cannot get married, then, according to the Gaudet’s brief, they were never married.
Late this afternoon, Justice Minister Rob Nicholson issued this statement to say that the government is going to modify things so that this logic need no longer be followed:
“I want to be very clear that the Government has no intention of reopening the debate on the definition of marriage. This case today involved the fact that, under current law, some marriages performed in Canada could not be nullified in Canada. I will be looking at options to clarify the law so that marriages performed in Canada can be undone in Canada.”
Though the brief contained no citation, the argument was hardly without legal basis; in fact, it’s practically axiomatic that “the law of the domicile of the parties governs their capacity to marry.” S.B. v. Alberta, 1982 ABCA 312.
See generally Schwebel v Ungar, [1965] SCR 148 (recognizing validity of marriage in Toronto based on capacity in Israel); Davies v Collins, 2010 NSSC 457 (“In Canada, judicial authority generally supports the view that capacity to marry is governed by the law of each party’s ante-nuptial domicile.”); Upadyhaha v Sehgal, 2000 CanLII 22441 (S.Ct. ON) (“For a marriage to be valid in law, the parties to the marriage must have capacity to marry according to the law of the domicile at the date of the marriage.”); Yang v Ging, 2003 BCCA 473 (marriage void b/c “by the law of Taiwan (his domicile at the time)” husband “had no capacity to marry”); Grewal v Kaur, 2011 ONSC 1812 (“if the marriage was not essentially valid under the law of each party’s prenuptial domicile, the marriage is voidable”); Sahibalzubaida v Bahjat, 2011 ONSC 4075 (“legal capacity to marry [is governed] by the law of each party’s antenuptial domicile”); Martinez v Basail, 2010 ONSC 2038 (citing “conflict of law rule that capacity to marry is governed by the ante nuptial domicile of each spouse); Brar v. Canada, 2001 CanLII 26802 (IRB) (“capacity to marry is governed by the law of each party’s ante-nuptial domicile”).
I don’t believe this well-established rule has previously been tested in a same-sex marriage case, and there are all sorts of reasons why we wouldn’t want it to apply in such a circumstance. But it does appear to be the prevailing rule – at least until the government enacts its announced change – and so it’s hardly fair to allege some Tory scheme to roll back same sex marriage, as many have.
And this doesn’t only apply to same-sex couples.
If you were married to a first cousin and moved to a state where you can’t marry a first cousin (see this map: http://www.buzzfeed.com/warszawski/cousin-marriage-vs-gay-marriage-16ej) you wouldn’t be able to divorce either.
(Let alone if you are gay first cousins!)
And what if the marriage was valid in one of the jurisdictions where they live, but not in the other?
And, in the specific case in questions (where both spouses were non-residents), shouldn’t that test have been made before they were given a marriage licence?
It’s important in this debate to remember that residence and “domicile” are not the same thing in Private International Law. Your example of two men moving to Florida shows they changed their residence but says nothing of their domicile. The last time I looked them up the rules of how you change your domicile were also slightly different in common law (Ontario) and civil law (Quebec).
you are close, David, but not exactly clearing this up.
– ANYONE of legal age can get married in Canada, no matter what country they live in or have citizenship with.
The marriage is considered legal and legally binding throughout Canada, forevermore.
– No ONE can go to Canada to get married and expect that by doing so they can circumvent the laws of the country they reside in or have citizenship with
The only grievance the couple in today’s news has of any merit is that Canadian law makes it easy to marry but hard to divorce.
When people marry do they not take a moment to consider the legal implications?
Do they not ask ‘is this marriage valid world-wide?’
What legal rights and obligations do I have should the marriage fail?
Canada issues marriage licenses with essentially the same stringent requirements as a vendor selling souvenirs of the CN Tower.
As was pointed out by other commenters elsewhere, the question of foreign SSM partners getting a divorce in Canada is not a new one:
http://www.cbc.ca/news/canada/british-columbia/story/2009/09/25/bc-gay-couples-divorce-canada-marriage.html
“Gay U.S. couples can’t get divorces for Canadian marriages
Last Updated: Friday, September 25, 2009
… Gay couples have been flocking to cities like Vancouver with its large gay community since same-sex marriage was first legalized in the summer of 2003.
Several of those couples have since approached Oregon lawyer Beth Allen looking for a divorce, but Oregon doesn’t recognize gay marriage, or divorce, so they can’t get a divorce there, she said.
As well, a residency requirement in Canada’s Divorce Act requires one of the two married people to live in this country for a year before a divorce can be granted, and those U.S. states which recognize gay marriage also have residency requirements for divorce. …”
The law legalizing SSM in Canada, passed by the Liberals in 2005, did not include the divorce angle. Ooops!
The easily outraged Evan Solomon doesn’t check CBC archives about topics he covers on Power & Politics. Ooops!
The consensus media — a phrase coined by Ezra Levant, I believe — is all atwitter over this issue, deflecting the focus away from the government’s and shipbuilding workers’ focus: jobs.
Watch the reaction of BC shipbuilding workers when a second question on the same-sex divorce issue is broached once again (by Ian Bailey of the Globe & Mail, at the 39:52 mark) and the reaction of the workers when another reporter says “I have a shipbuilding question”:
http://www.cpac.ca/forms/index.asp?dsp=template&act=view3&pagetype=vod&hl=e&clipID=6428