Is Canada Invalidating Same-Sex Marriages for Non-Canadians?

A denied divorce in Toronto has thousands of gay couples wondering if their marriages are suddenly null and void.

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When Canada officially legalized same-sex marriage in 2004, the country quickly became a hot tourist destination for gay couples looking to put a ring on it. Since then, thousands of foreign same-sex couples have traveled to the country, paid the licensing fees and vowed love to their partners in a ceremony often forbidden in their homeland. But a recent news report suggested that those thousands of marriages might not be recognized as valid in the very country where they took place.

The Globe & Mail reported on Thursday the ordeal of one lesbian couple, married in Toronto in 2005, who had recently traveled back to Canada to divorce. The women, however, hit a wall when a Department of Justice lawyer told them that they couldn’t legally split because Canada didn’t recognize their marriage as valid in the first place. Why not? Because the couple’s home countries — England and the U.S. — didn’t legally allow gay marriage. Yet it’s clear that when it comes to gay divorce for foreign couples wed in Canada, this is all uncharted territory.

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The shocking and deeply flawed explanation has led to an explosion of outrage across Canada and the world, as approximately 5,000 couples wondered if their marriages had been declared null and void. Everyone from former Prime Minister Paul Martin to columnist and vocal LGBT-rights activist Dan Savage have passionately condemned the seeming about-face from Canada’s Conservative government.

“It is appalling and outrageous that [the] government would be taking this position without ever having raised it before, telling anybody it was an issue or doing anything proactive about it,” the couple’s lawyer, Martha McCarthy, told the Globe & Mail. “All the while, they were handing out licenses to perform marriages across the country to non-resident people.”

Unsurprisingly, current Prime Minister Stephen Harper found himself bombarded with questions from reporters on Thursday morning at an appearance. Though the Globe & Mail‘s report had already swept the Internet, Harper appeared unprepared to deal with the questions, merely saying that his government was “not going to reopen that particular issue” — signaling that gay marriage wasn’t in danger in Canada. Instead of putting the issue to rest, however, Harper’s statement only fanned the fury as pundits and political opponents began speculating that there were backroom politics at play.

This led to Justice Minister Rob Nicholson attempting to illuminate the problem with the law. He suggested that divorce law itself needed to be modified. (Currently, couples are also required to live in Canada for at least a year before obtaining a divorce.) In apparent damage-control mode, he insisted that he “will be looking at options to clarify the law so that marriages performed in Canada can be undone in Canada.”

While Nicholson’s statement does offer a measure of reassurance, there is still much uneasiness on the government’s position and on the future of gay marriage in Canada. Should there be? While it’s understandable that any presumed waffling on the issue, long thought a thing of the past in Canada, is a cause for concern, the scandal has hardly won Harper any popularity points. Whether this issue was the case of a faulty interpretation of the law or an exposure of an undisclosed government position, it seems very unlikely that Canada’s government would attempt to reverse same-sex marriage laws.

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