The Validity of Same-Sex Marriages and Divorce in Canada

In 2012, there was “controversy” over same-sex marriages, and specifically the issue of divorce for same-sex couples legally married in Canada. Media coverage included allegations that the government had done a “legal about-face” and a “reversal of federal policy” on the issue of same-sex unions.

However, there was no “controversy” at all.

The media had misunderstood many of the legal issues arising from the divorce petition which was filed in a Canadian court by a lesbian couple. While they had lived in another country, they had utilized Canada’s legalization of same-sex marriages and had come to Canada to get married. Six years later they decided to end their relationship, and they wanted to divorce in Canada as well. They had lived in Florida and England. Neither of those jurisdictions recognized gay marriages, so the couple could not get a divorce there.

However, the couple could not divorce in Canada, because they did not meet the 1-year residency rule imposed by Canadian law on every couple, whether gay or not. In addition, they did not meet another requirement for a Canadian divorce, as their marriage was not legally recognized in their country of citizenship.

The Canadian court determined they could not grant a legal divorce. The couple was seemingly left without options.

None of these events represented a change in government policy as portrayed by the media; it was just an unusual situation which resulted in a “black hole” in legal policies.

It is important to understand that every country determines its own laws relating to marriage and divorce. Legal difficulties can arise when a couple marries in one country, and then later chooses to divorce in another.

The law states that the legality of the lesbian couple’s marriage is to be determined by the laws of each parties’ place of residence immediately before getting married (i.e., Florida and England). So although Canada recognizes gay marriage, other countries may not. However, the resolution of the issue from a legal standpoint still has to be determined by the specific court which is presented with the divorce application.

This may not address public concerns raised by incomplete media reporting. Thankfully, the matter was recently resolved. In 2015 the federal Justice Minister confirmed that existing same-sex marriages are valid under the Civil Marriage Act.

In this case, there was no legal “controversy” or “policy reversal” at play here.