December 1, 2006

Same Sex Marriage Debate Over by Ian M. Solloway

Same Sex Marriage Debate Over In Canada, But Questions Still Remain

On December 6, 2006, by a vote of 175 to 123, Parliament defeated a Motion by the Conservative Government calling for a restoration of the so-called “traditional definition” of marriage, thereby effectively putting an end to the debate over same-sex marriage in Canada. Since June, 2003, when the Ontario Court of Appeal struck down the then federal ban on same-sex marriages as a violation of the equality rights of gays and lesbians under The Canadian Charter of Rights and Freedoms, there have been over 12,400 same-sex marriages performed in Canada. In December, 2004, the Supreme Court of Canada, in a reference case put before it by the then Liberal Government, held that the proposed new definition of marriage to include same-sex couples was constitutional.

Notwithstanding the legality of same-sex marriages from a domestic law point of view in Canada, there remains a very practical problem facing same-sex couples who marry in Canada and wish to relocate to a foreign jurisdiction. The problem involves the question of extra-territorial recognition of their union. Under the rules of private international law, the form of marriage is governed by the law of the place of solemnization of the marriage. However, the status or capacity of the couple to marry is governed by the law of the couple’s ante-nuptual domicile.

So, for example, the marriage of two same-sex spouses in Quebec, who were domiciled in Quebec at the time of their marriage, should be recognized outside Canada under private international law since both spouses had the status or capacity to marry under the law of their ante-nuptual domicile. The marriage would certainly be recognized in The Netherlands, Belgium, Spain, South Africa and Massachusetts, the only jurisdictions which, apart from Canada, presently allow for same-sex marriages.

However, were the couple to relocate to one of the other 49 U.S. states which do not permit same-sex marriages, no recognition of the marriage would be afforded to their union. The federal Defence of Marriage Act adopted by the U.S. Congress in 1996, relieves American states of any obligation to recognize same-sex marriages that are lawful in other jurisdictions. Therefore, because the foreign (here, the Canadian marriage) would not be recognized in 49 U.S. states, the couple would not be entitled to the rights and benefits conferred upon opposite-gender married spouses, including, the right to divorce.

Could the couple return to Canada in order to obtain a divorce? The answer is “yes”, provided that the plaintiff spouse can show that either one of the spouses had re-established “ordinary residence” in the particular province for at least one year immediately preceding the filing of the divorce application. The plaintiff spouse would, of course, have to be able to prove one of the grounds set forth under section S.8 of the Divorce Act (i.e. a one year separation, or mental or physical cruelty, or adultery). However, the ground for divorce need not necessarily have occurred in Canada to be invoked.

The question of a U.S. same-sex couple, who wish to come to Canada to take advantage of our law permitting marriage between people of the same gender and then return to United States, is likewise problematic. Given that this type of marriage would not presently be recognized in their home state (except for Massachusetts), the couple might want to reflect on the implications of such a decision before making it a reality.

Therefore, although the same-sex marriage debate may be over in Canada, the extra-territorial legal fall out is still far from settled. We will continue to keep an eye on this matter which is certain to evolve over the months and years to come.