179 replies to this topic

[August1991]

The wonder of unintended consequences! Or, “Oh what a tangled web we weave, When first we practice to deceive”.

The issue is not gay marriage. It is gay divorce and specifically, the divorce of two foreign gays who married in Canada. Martha McCarthy, a lawyer in Toronto, is acting on behalf of two foreign women in their divorce case. There's a problem however. Neither woman is resident in Canada and Canada's (federal) divorce law requires that at least one of the spouses reside in a province for at least 12 months.

In a response to Ms. McCarthy’s court application, federal lawyer Sean Gaudet tied the federal position to two central propositions. First, he said, couples who came to Canada to be married must live in the country for at least a year before they can obtain a divorce. Second, same-sex marriages are legal in Canada only if they are also legal in the home country or state of the couple.

G & M

Canadians frequently marry abroad. (For example, our own Minister of Defence recently married in Mexico.) If Mackay or his spouse decides to divorce in a few years, will either go to a Mexican court to break their marriage contract? Where a marriage takes place is distinct from where a divorce takes place.

I think the question here is whether we should change our divorce law to accommodate foreigners who happened to come to Canada to get married. Specifically, should we remove the residency requirement and in effect allow anyone to fly in and apply for a divorce?

In Canada, this problem is more thorny because the terms of divorce are determined at the provincial level. At present, a divorcing couple must apply for divorce in the province of residency. If we remove the residency requirement, then people could apply for divorce in any province.

This is a legal mess. And sadly, the issue has all the makings of becoming AGMT (another gay marriage thread).

Edited by August1991, 12 January 2012 - 09:16 AM.

[scribblet]

I don't see why we should change our divorce laws or residency requirements for foreigners. The only legitimate point IMO is that it would be nice if they were told about residency requirements re divorce ahead of their marriage.

This will be turned into an anti Harper thread and gay marriage thread no doubt

I also notice that this was a provincial issue the the province kicked it up to the feds

Edited by scribblet, 12 January 2012 - 09:27 AM.

[August1991]

The only legitimate point IMO is that it would be nice if they were told about residency requirements re divorce ahead of their marriage.

I agree and more generally, gays who marry in Canada should understand that their union may or may not be respected abroad. In an ideal world, everyone would know this.

Let's see however where this issue goes.

[scribblet]

It is being presented in some areas as a 'rescinding of gay marriage', yet I don't see that. To me it's about divorce and residential requirements only. I would also think that gay foreigners coming here to get married would take the time to research their legal status for both marriage and divorce before entering into it.

Obviously though, it's not clear, but this is the perfect opportunity for the conspiracy theorists and the sky is falling crowd to push their 'hidden agenda' narrative and blame it all on Harper.

[fellowtraveller]

I don't undertsand what the issue is here.
The divorce laws apply to everybody that is married, it does not matter if they are gay, foreigners or Canadian citizens as the residency rerquirement applies to all. Why would we differntiate for any of those groups?

[Evening Star]

It's not just the divorce issue though. This is a key point:

a Department of Justice lawyer says their marriage is not legal in Canada since they could not have lawfully wed in Florida or England, where the two partners reside

Until now, apparently, it has been policy to accept these marriages - 5000 of them, according to the article - as legitimate. So for the government to now say that they were never legitimate even in Canada does seem a bit nasty and at least like an "about-face" in the author's words.

[August1991]

Until now, apparently, it has been policy to accept these marriages - 5000 of them, according to the article - as legitimate. So for the government to now say that they were never legitimate even in Canada does seem a bit nasty and at least like an "about-face" in the author's words.

That's how the G&M journalist chose to word the argument of Sean Gaudet, the Justice lawyer in this case.

I'd like to see the actual wording of Gaudet's argument.

-----

As I understand it, two foreigners who marry in Canada are, well, legally married in Canada. Other jurisdictions may not recognize the marriage and hence in that sense, they are not married.

For example in Saudi Arabia, it is possible for a man to marry two women but Canada will not recognize the second marriage. It is not possible for the husband and second wife to divorce in Canada. They have a legal marriage in Saudi Arabia but not in Canada.

It seems to me that Gaudet is correct to draw this distinction because in effect, a married gay couple can divorce in Canada (if they are resident here) or they can divorce abroad (if they live in a jurisdiction that recognizes gay marriage). If neither is true, then they are not married.

[fellowtraveller]

It's not just the divorce issue though. This is a key point:



Until now, apparently, it has been policy to accept these marriages - 5000 of them, according to the article - as legitimate. So for the government to now say that they were never legitimate even in Canada does seem a bit nasty and at least like an "about-face" in the author's words.

Good pint, though I will bet that the Dept of Justice will fail on the second point.

In a response to Ms. McCarthy’s court application, federal lawyer Sean Gaudet tied the federal position to two central propositions. First, he said, couples who came to Canada to be married must live in the country for at least a year before they can obtain a divorce. Second, same-sex marriages are legal in Canada only if they are also legal in the home country or state of the couple.

The marriages were perfectly acceptable in Canada at the time of marriage, assuming that neither participant was already married ie not a bigamist. And if the marriage was acceptable, so is the concept of divorce though the residency requirement applicable to all genders would still apply too. Justice will get creamed in court on the second point.

[The_Squid]

The gov't has made a U-turn apparently. No longer will those marriages be null & void.

http://montreal.ctv....ub=MontrealHome

A mean-spirited trial-balloon to gauge reaction? Or just a SNAFU from the Harper Gov't?

[WWWTT]

I agree and more generally, gays who marry in Canada should understand that their union may or may not be respected abroad. In an ideal world, everyone would know this.

Let's see however where this issue goes.

Aswell many inter-racial,inter-religious marriages are not recognized in some countries around the world!

Are you saying that these other countries should influence us in Canada in some way?

WWWTT

[TimG]

The divorce laws apply to everybody that is married, it does not matter if they are gay, foreigners or Canadian citizens as the residency requirement applies to all. Why would we differentiate for any of those groups?

What the anti-Harper yahoos forget is there good reasons for the residency requirements since a divorce involves dividing assets and the jurisdiction matters. If you remove the residency requirements then one spouse could file for divorce in the jurisdiction that maximizes their financial advantage at the expense of their ex-partner. The most fair way to resolve this is to use the jurisdiction where the couple resides at the time of divorce.

[Evening Star]

What the anti-Harper yahoos forget is there good reasons for the residency requirements since a divorce involves dividing assets and the jurisdiction matters. If you remove the residency requirements then one spouse could file for divorce in the jurisdiction that maximizes their financial advantage at the expense of their ex-partner. The most fair way to resolve this is to use the jurisdiction where the couple resides at the time of divorce.

I don't think anyone has been complaining about the residency requirements for divorce. It's the question about foreign couples who have already been married in Canada that concerns people.

[TimG]

I don't think anyone has been complaining about the residency requirements for divorce. It's the question about foreign couples who have already been married in Canada that concerns people.

As someone mentioned, the actual argument used by the government lawyer needs to be presented. e.g. it is perfectly reasonable to claim that a couple does not need a divorce if the jurisdiction where there are resident does not recognize gay marriage. That is quite different from the spin appearing the papers.

Edited by TimG, 12 January 2012 - 04:12 PM.

[Evening Star]

As someone mentioned, the actual argument used by the government lawyer needs to be presented. e.g. it is perfectly reasonable to claim that a couple does not need a divorce if the jurisdiction where there are resident does not recognize gay marriage. That is quite different from the spin appearing the papers.

That's a reasonable point but I can still see why they might want their Canadian marriage annulled as well.

[Evening Star]

I mean, I agree that it's fair to wait until we hear the actual argument presented by the govt lawyer.