Last week, news headlines were full of questions and confusion over gay marriage after two women, one of whom lives in the UK while the other lives in Florida, applied for a divorce in Canada. The women had been married in Canada in 2005, but since neither the USA nor the UK recognize gay marriage, they were unable to get a divorce in their own countries of residence when they split up in 2009. Since the former couple no longer wanted to be married, they decided to return to the country of their marriage to get a divorce… only to discover that the rules which apply to getting married don’t apply to getting a divorce. Canada’s divorce act requires that at least one spouse have been living in Canada for at least a year. In other words, while you can come to Canada to get married on a vacation, you can’t come here for a divorce on vacation… This might remind you of that classic 1939 movie “The Women”, where the lead character has to spend a few months in Reno in order to obtain a divorce there. Apparently, neither woman in this case wants to spend a year in Canada to obtain a divorce, so they are arguing that they should not have to do so.
However, this case hit the media in a big way because of an argument that the feds made in support of their position that they should not have to bend the rules of the divorce act to divorce these women; they argued that the women had never been married at all, based on international and conflict of law rules about marriage validity that I won’t get into. This argument made it into the news, and resulted in a great deal of confusion. Getting the point completely backward was the famous columnist Dan Savage, who wrote “Now if you’ll excuse me I need to go wake up my husband and tell him we got divorced last night.”
There are interesting legal issues at play in this case, and the international attention it has received has prompted the Canadian government to look into options that would allow non-Canadians who were married here to more easily obtain divorces here. As for whether the marriages are valid in the first place – to some extent, this is dependent on foreign laws, not Canada’s, but would be surprised if this is an argument that the feds will pursue… especially given the public response.
