Posted by Benita Hisey | 

In 2004, a judge in Toronto refused to grant a divorce to a couple who were of the same sex. The judge claimed that the ground for this refusal was that the divorce laws were only applicable to those who according to the Divorce Act were a man and a woman married to each other. This Canadian couple were married on June 18, 2003 but had separated five days later. The lesbian couple has been living together for 10 years before their nuptials. Later that year a higher court in Canada overruled the decision made by the earlier courts. This marked the first same-sex divorce in Canada and the world.

Before this instance, the issue of same-sex divorces had rarely been addressed, although same-sex marriages were legalized in several nations. The Court stated that the definition of spouse in the Divorce Act was discriminatory and unconstitutional. It ruled that the legislation must include same-sex couples so that they too have divorce laws.

Moving forward, January 2012 witnessed another dilemma to do with same-sex divorces. With same-sex marriages being legalized in Canada, the country has witnessed a sudden influx of lesbians and gays who travel down just to exchange wedding vows.

Divorce dilemma 2012

The couple seeking the divorce lives in England and Florida. The argument posed by the lawyers from the Department of justice was that the couple's marriage was invalid in Canada because it is also invalid in England and Florida. And it is a well-known fact, that same-sex marriages are illegal in both countries allowing no provision for same-sex divorce laws.

The couple was astonished and annoyed at not being informed of this earlier. To add to this, according to Canada's Divorce Act, in order to be eligible for a divorce, one of the spouses is required to reside Canada for a year before the divorce is granted. This is a serious issue for those couples who flocked the country just to get married and had no intension of residing there at any point.

The media automatically took to this issue and posed a number of questions to the government. The central theme of which was if the Canadian government has created this policy on purpose in order to ruin the rights of foreign couples who came to Canada just to get married under its same-sex marriage laws.

The solution

The answer to this dilemma was found in a rather complex section of law known as conflicts of law. This area covers rules regarding foreign law, foreign jurisdiction and foreign litigants. These rules have been created to help resolve issues that are brought up by inter-jurisdictional legal questions. This demonstrates that the legal position on this issue is more related to international law than Canada's policy.

Foreign couples marrying in Canada are now aware of the issues associated with getting married there. There was widespread dismay that was expressed from the media and the critics of the government regarding this issue. This instance is a clear example that it is important to have complete knowledge regarding marriage and divorce laws in other countries.

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| January 15, 2012 | Back to Top