Same sex marriage under attack in Canada? Or is it?

[Antiquehunter]

A story getting a fair amount of airplay up here in Canuckistan, is the plight of two women seeking a divorce.

They are both non-resident, and had travelled to Canada in 2005 to obtain a marriage. Apparently things didn't work out, and they want to call it quits.

However neither of them lives in a jurisdiction that recognizes same-sex marriage. And Canada has a rule that requires someone to be resident for a year before they'll issue a divorce.

Now - while I'm full of sympathy for people who seem to be stuck, I also don't understand why all the fuss, and all the 'sky is falling' commentary about same sex marriage.

If you live in place 'A', that doesn't recognize a certain legal statute, and you travel to place 'B' that DOES recognize it, I'm not sure you should have any expectation of being treated any different in place 'A'. Nor does place 'B' have any business trying to influence policy in place 'A'.

How this has turned into histrionic reporting that the Canadian government is reneging on same sex marriage is beyond me. Seems that the government needs to examine its divorce policy for non-residents, but beyond this, I fail to see why the individuals (or the public) should have their knickers in a knot.

Am I missing something here?

http://www.cbc.ca/news/canada/story/2012/01/13/f-divorce-non-resident-canada.html

http://www.theglobeandmail.com/news...acy-theories-on-harper-agenda/article2300080/

 

[Professor Yaffle]

I don't see why it is so essential they get a divorce when the place they are living in doesn't treat them as married. They should both just write on a piece of paper: "I divorce you" and then go on their merry way.

 

[Antiquehunter]

Indeed. Since their Canadian marriage had no LEGAL bearing in either of their home jurisdictions, it was a purely symbolic exercise (an important one to each of them I'm sure).

So they need to now figure out how to manage the logistics of divorce, presumably some mediation / conciliation may be required, and then shake hands and move on.

Don't see why this needs to be a big foo-farah.

 

[Gord_in_Toronto]

Seems to be over.

Justice Minister declares all same-sex marriages legal and valid

kirk makin — JUSTICE REPORTER
Globe and Mail Update
Published Friday, Jan. 13, 2012 12:49PM EST
Last updated Friday, Jan. 13, 2012 2:21PM EST

All same sex marriages performed in Canada are legal and the law will be changed to ensure that divorce is readily available to non-residents who were married in the country, Justice Minister Rob Nicholson says.

http://www.theglobeandmail.com/news... RSS/Atom&utm_source=Home&utm_content=2301691

 

[ddt]

Indeed. Since their Canadian marriage had no LEGAL bearing in either of their home jurisdictions, it was a purely symbolic exercise (an important one to each of them I'm sure).

So they need to now figure out how to manage the logistics of divorce, presumably some mediation / conciliation may be required, and then shake hands and move on.

Don't see why this needs to be a big foo-farah.

Of course, it would matter once one or both of them moved. Now they live in Florida, USA, and the UK respectively, but they might well move to another jurisdiction where same-sex marriage is recognized. Then they might encounter trouble with their marital status, e.g., when wanting to remarry to someone else.

 

[Antiquehunter]

Of course, it would matter once one or both of them moved. Now they live in Florida, USA, and the UK respectively, but they might well move to another jurisdiction where same-sex marriage is recognized. Then they might encounter trouble with their marital status, e.g., when wanting to remarry to someone else.

Well I suppose, but I doubt very much the Canadian marriage registry communicates with the registry in Argentina, or the Netherlands, or Belgium or whatnot.

I should point out, that I am also in a Canadian same-sex marriage, and I am non-resident in Canada.

 

[bonzombiekitty]

I don't see why it is so essential they get a divorce when the place they are living in doesn't treat them as married. They should both just write on a piece of paper: "I divorce you" and then go on their merry way.

Because they likely have joint assets that need to be divided up and it may take the government to sort it out if the two cannot agree.

 

[ddt]

Well I suppose, but I doubt very much the Canadian marriage registry communicates with the registry in Argentina, or the Netherlands, or Belgium or whatnot.

To continue my example of remarrying: bigamy is a crime. In the Netherlands, punishable up to 6 years imprisonment. Even if you won't get that by far with such a backstory, you don't want the hassle.

I should point out, that I am also in a Canadian same-sex marriage, and I am non-resident in Canada.

And a Chilean citizen, to be curious?

The whole fuss about same-sex marriage is really unprecedented. From times immortal, marriage has been universally recognized across jurisdictions, irrespective of minimum age (which even can differ within a sovereign state) or restrictions on relatives marrying. However, when it's not anymore a man and a woman all hell breaks loose.

 

[Antiquehunter]

And a Chilean citizen, to be curious?

Nope - I'm a Canadian citizen dual with UK citizenship (both passports). I am eligible to apply for a Chilean passport after 5 years of permanent residency, so that will be 2016.

 

[Segnosaur]

A story getting a fair amount of airplay up here in Canuckistan, is the plight of two women seeking a divorce.
...
How this has turned into histrionic reporting that the Canadian government is reneging on same sex marriage is beyond me. Seems that the government needs to examine its divorce policy for non-residents, but beyond this, I fail to see why the individuals (or the public) should have their knickers in a knot.

Am I missing something here?http://www.theglobeandmail.com/news...acy-theories-on-harper-agenda/article2300080/

Don't you understand? Its Harper! Leader of the Conservatives! He's got a secret agenda to turn back human rights to the 19th century!

 

[Bandersnatch]

If I'm not mistaken, they're arguing that the divorce is not necessary, as they were never legally married in the first place.

Both partners came lived in places where same-sex couples could not marry, therefore Canada had no legal grounds to be allowed to marry them. Meaning they were not married, and cannot apply for a divorce.

Also, they didn't live in Canada for a year.

This means that any foreigners who got married in Canada with a same sex partner, and their home countries did not allow it, are not legally married in Canada.

 

[Antiquehunter]

If I'm not mistaken, they're arguing that the divorce is not necessary, as they were never legally married in the first place.

Both partners came lived in places where same-sex couples could not marry, therefore Canada had no legal grounds to be allowed to marry them. Meaning they were not married, and cannot apply for a divorce.

Also, they didn't live in Canada for a year.

This means that any foreigners who got married in Canada with a same sex partner, and their home countries did not allow it, are not legally married in Canada.

Nope. They are legally 'married' but it doesn't mean anything in their home jurisdiction. Divorces are generally done in your home country, since Canada (and most countries) don't generally offer non-resident divorces to prevent people from choosing the most expedient jurisdiction. They can't get divorced at home since their marriage isn't recognized. Canada won't divorce them because they're non-resident so they're a bit stuck.

However, as per the most recent news article, its all a tempest in a teacup. They're working on fixing the problem, and the marriages are all 'honored' - at least in Canada.

 

[Bandersnatch]

Nope. They are legally 'married' but it doesn't mean anything in their home jurisdiction.

Not according to the attorney's argument:

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.

[sic]

Source: Dave Atkin's blog

 

[Antiquehunter]

Not according to the attorney's argument:


[sic]

Source: Dave Atkin's blog

And since, it has been stated by the Justice Minister that steps will be taken to ensure all marriages are indeed, legal both for res and non-res. Source: Several widely reported newspapers quoting the JM from his press release.

 

[Antiquehunter]

Fundamentally - the original statement by the lawyer that set the whole story off, was probably no more than a poor choice of words.

If a non-resident couple comes to Canada to get married, and the marriage won't be ackwnowledged in their home jurisdiction, then the 'legality' of the marriage is rather symbolic. In Canada, as non-residents, they aren't entitled to any special privileges or rights beyond the documents they have that show them as married. I suppose they could present themselves to (Canada) Customs & Immigration and enter as a couple vs as two individuals, but beyond that they aren't going to get much benefit on a day to day basis.

In the event one of them was injured or incapacitated, their married status would be useful to them in the hospital, to ensure care decisions were made. Beyond that - not much else.

I'm willing to wager that the original quote was taken out of context. I don't beleive for a second the inference was that the marriage was 'illegal' or null/void. Its just of rather limited value, and certainly is 'null' in the country of origin.

As a same-sex married couple (married in Canada, as Canadian residents, no longer resident in Canada), I can't walk into the pension office in Chile, and ask them to recognize our marriage and apply for a Chilean old-age pension on my partner.

 

[Bill Thompson]

same GENDER marriage should be accepted worldwide, then this problem would disappear.

What would the Canadian courts do if one of these women married a man? Would she be guilty of bigamy?