Same-sex couples married in Canada – but originally from other countries – have been threatened with the prospect of their marriage being declared null and void.
In response to a divorce filed by a lesbian couple, one of whom lived in Britain, the other in Florida, a government lawyer argued that since the couple’s marriage would not be legal in either jurisdiction, it was not a valid marriage in Canada either. Although civil partnerships are allowed in the UK and same sex marriage is legal in a handful of US states, same-sex marriage is illegal is both countries.
More than 5,000 of the 15,000 same-sex marriages that have taken place in Canada since 2003 involved foreign couples, many of them from the United States.
Seattle-based columnist Dan Savage, best known for initiating the It Gets Better videos, was shocked to wake up to news on Thursday that the Canadian government’s confusing legal position meant the marriage to his boyfriend in Vancouver in 2005 might not be legal.
‘When I got out of bed, I was a married man and as soon as I got on my Twitter feed I realized I had been divorced overnight,’ said Savage, in an interview with the Globe and Mail. Same-sex marriages are not performed where Mr. Savage lives.
Canada’s Prime Minister, Stephen Harper and Attorney General, Rob Nicholson, have responded by suggesting that the government is not aiming to curtail the rights of any couples married there. The government’s view, outlined in a legal brief in the divorce proceedings, argues that same-sex marriages non-residents enter into in Canada are only valid if those marriages are also legal in their home country.
Prime Minister Stephen Harper claims he does not want to re-open the issue of same-sex marriage. However, in appearing to de-legitimize the right for foreign couples, the Canadian government has given rise to conspiracy theories over its true intentions towards it. The country’s interim Liberal Leader, Bob Rae, called the Justice department’s refusal to recognize same-sex marriage ‘illogical’ and ‘ludicrous’ although would not be drawn on suggestions that the Canadian government is trying to surreptitiously change Canadian law through a Toronto test case.
However, a coalition of groups representing gay and lesbian people have reacted to the news without great alarm, saying marriages are unlikely to be written off, and that the position taken by one government lawyer in a divorce did not in itself strike a precedent. ’No court has accepted this view and there is no reason to believe that either Canada’s courts or its Parliament would agree with this position, which no one has asserted before during the eight years that same-sex couples have had the freedom to marry in Canada.’
But it warned same-sex couples married in Canada that the message remained the same as for same -sex couples married in the United States.
‘Take every precaution you can to protect your relationship with legal documents such as powers of attorney and adoptions, as you may travel to jurisdictions that don’t respect your legal relationship.’
Canadian marriage laws allow non-residents to enter marriages in Canada, provided non-residents meet certain requirements related to age and current marital status. But the laws do not include a requirement that the marriage be affirmatively recognised in every jurisdiction where the couple subsequently lives. If that were the case, then Canada would have to invalidate civil marriages for some inter-faith couples who may move to a country where inter-faith marriages are not recognized.
Bernard Cherkasov, CEO at Equality Illinois, said: ‘The lawyer articulating the position on behalf of Harper’s government was either confused about the law or was purposefully attempting to score political points at the expense of gay and lesbian families.
‘Thousands of American, British, and other same-sex couples travelled to Canada to get married and celebrate their love with family and friends. Others are still fighting for recognition of their marriages under civil law. No American or British jurisdiction prohibits a person from marrying another of the same sex, it’s just some jurisdictions refuse to recognize such a union’ added Cherkasov.
‘It would be unusual for a sovereign government to subject its domestic laws to the test of recognition by other states. Would the Canadian government invalidate a civil marriage between a Muslim and a Jew just because their marriage would not be recognised in Saudi Arabia?’