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A Third Of Gay Marriages in Canada May Be Invalid

Since Canada legalized same-sex marriage in 2004, some 15,000 gay and lesbian couples have jumped the broom. But now a lawyer for the Canadian government is claiming up to a third of those marriages may be invalid because they were between foreigners who couldn’t wed in their native countries.

A case before the Ontario Superior Court involves a lesbian couple in which one woman is English and the other is American. The women, who wed in 2005, are seeking a divorce but the Canadian Department of Justice’s Sean Gaudet claims divorce is only available for those people who have lived in Canada for a year or more and have a valid marriage to dissolve. (Neither the U.S. nor England has national marriage equality.)

Shouldn’t this have crossed the bureaucrats’ minds when they were signing gay marriage into law?

Martha McCarthy, who is representing the women, agrees, telling Canada’s Globe and Mail, “it is appalling and outrageous that two levels of government would be taking this position without ever having raised it before, telling anybody it was an issue or doing anything pro-active about it. All the while, they were handing out licences to perform marriages across the country to non-resident people.”

The Canadian government could pass legislation to help get the 5,000 foreign couples who married up north out of legal limbo, but that will likely take some time.

Source: Globe and Mail via Pink News UK. Photo: Zoe Barron

By:           Dan Avery
On:           Jan 12, 2012
Tagged: ,

  • 23 Comments
    • LancerLaw
      LancerLaw

      This is all we’ve been talking about this morning where I live. I’m being interviewed by CBC news in a couple hours… if there are any Detroit area (for proximity reasons) gay couples that were married in Canada that are willing to be interviewed, please email me at lawrence.l@windsorpride.com

      Jan 12, 2012 at 12:44 pm · @ReplyReply to this comment ·
    • JAW
      JAW

      This is interesting… only 15,000 Glbt couples married in 8 years… and half of them are foreign?

      sounds like it is going to take forever and a day for the Pope to be proven correct that same sex marriage will bring down all of humanity.

      Jan 12, 2012 at 1:04 pm · @ReplyReply to this comment ·
    • Cam
      Cam

      Is there something specifically written in the Canadian law that says the people must be citizens of Canada for the marriage to be vaild? If there isn’t then I don’t see what the argument is.

      Jan 12, 2012 at 1:05 pm · @ReplyReply to this comment ·
    • Robert in NYC
      Robert in NYC

      Cam, you don’t have to be a Canadian citizen to get married obviously as long the country from which the foreigner hails also allows SSM. It’s obvious the previous administration didn’t think this one through. I doubt if a change will happen any time soon not with conservative, anti SSM PM Stephen Harper in power. Remember, the first thing he tried to do when he was elected was to try to repeal SSM in Canada, but failed, thankfully.

      Jan 12, 2012 at 1:13 pm · @ReplyReply to this comment ·
    • MikeE
      MikeE

      the headline is very misleading.

      one third of same-sex marriages in Canada are not “invalid”.
      every single same-sex marriage IN Canada is perfectly valid.

      the headline should read “foreigners’ Canadian marriages may be invalid”.

      Jan 12, 2012 at 1:13 pm · @ReplyReply to this comment ·
    • Robert in NYC
      Robert in NYC

      Cam, you don’t have to be a Canadian citizen to get married obviously as long the country from which the foreigner hails also allows SSM. It’s obvious the previous administration didn’t think this one through. I doubt if a change will happen any time soon not with conservative, anti SSM PM Stephen Harper in power. Remember, the first thing he tried to do when he was elected was to try to repeal SSM in Canada, but failed, thankfully. This doesn’t just apply to Canada. Several other countries where we can marry also don’t recognize foreign SSM’s if the respective countries don’t allow it. It has to be an reciprocal arrangement among countries allowing it, although I believe France may recognize foreign SSMs even though it doesn’t allow it per se.

      Jan 12, 2012 at 1:17 pm · @ReplyReply to this comment ·
    • MikeE
      MikeE

      @Robert in NYC: it wasn’t a question of the former gov’t “not thinking it through”.

      the law was changed for the citizens of Canada. period.

      it was up to the people from other countries getting married here to be aware that their marriages would not be valid in their home countries.

      And as long as these foreigners are not residing in Canada, they are not citizens, nor landed immigrants, the gov’t of Canada has no real responsibility toward them in this regard.

      Jan 12, 2012 at 1:22 pm · @ReplyReply to this comment ·
    • TomMc
      TomMc

      There seem to be two issues;

      1 – That the non-Canadian couple seeking to be divorced did not meet the residency requirement (having to live in Canada for at least one year before applying for a divorce.)

      2 – Further, and this is one is a bit of a surprise, that couples married in Canada who hail from jurisdications wherein their marriages would not be legal are therefore not legally married in Canada.

      Most important is to know that the current federal government in Canada is arguably the most ‘conservative’ one its ever had, and that the current prime minister is like an intelligent version of George W. Bush. Plus Canadians, including Canadian politicians, have mastered politeness to the point wherein no one will be glitter-bombed over these recent ‘decisions’ anytime soon.

      Jan 12, 2012 at 1:34 pm · @ReplyReply to this comment ·
    • LancerLaw
      LancerLaw

      The issue is “are they legally married.” And since Canada has no residency requirement to issue licenses, then yes – the marriages were legal and valid. However, every married couple would need to file the paperwork when they return home to show their marriage and if their home gov’t doesn’t recognize it then it isn’t recognized there. That, however, shouldn’t be a concern of the Canadian government, because they were legally married in Canada and while in Canada, should be recognized. This change is prima facie discriminatory because it only affects same-sex marriages. The issue should not be “their home jurisdiction.” They didn’t apply to get divorced where they live because they know it isn’t recognized, but it should be dissolved in Canada, where it was legally performed.

      Jan 12, 2012 at 1:36 pm · @ReplyReply to this comment ·
    • Freddie
      Freddie

      Canada legalized same sex marriage in 2005, not 2004.

      Jan 12, 2012 at 1:47 pm · @ReplyReply to this comment ·
    • MikeE
      MikeE

      if they aren’t planning on emigrating to Canada, why are they bothering with a “divorce” then?

      Since their home country doesn’t recognize their marriage anyway.
      It’s not like there are any legal obligations because they were married in Canada.

      And yes, you must be a resident in Canada for a year to apply for a divorce here. That much has been clear from the very start when people from out of the country started coming to get married here.

      Jan 12, 2012 at 1:48 pm · @ReplyReply to this comment ·
    • esperando
      esperando

      @MikeE: I’ve noted this confusion before, especially with straight people who have never sat down and thought for five minutes what it would be like to have the government drip venom and hostility towards the most intimate and important in their lives. This isn’t just an issue of other countries refusing to recognize same-sex marriages. Canada is saying that it won’t recognize marriages that it itself solemnized in its own jurisdiction under its own law. The Harper Government is trying to argue that the law of the couple’s home country actually trumps Canadian law on CANADIAN soil; it gives such excessive deference to the laws of homophobic countries that it is trying to allow its own law to be trumped. This is not just an issue of inconvenience for same-sex couples, it’s also an issue of Canada’s sovereignty, and the integrity of the rule of law here. What other contracts could be nullified if a non-citizen were to enter into it contrary to the laws of their home jurisdiction? Should Canada arrest Saudi women who drive on a CANADIAN license IN CANADA because the Saudi government would refuse to grant them a license? That would be absurd, and all reasonable people would recognize that it is a thinly veiled attack on the rights of women in general, motivated by nothing but animus and prejudice. This is no different.

      Jan 12, 2012 at 2:27 pm · @ReplyReply to this comment ·
    • Elmwoodmac
      Elmwoodmac

      FYI, much of this is more likely due to the Canadian Prime Minister, Stephen Harper.

      A right wing, bible thumper who is the Canadian equivalent to Romney, Gingrich, Perry etc.

      This guy officially received a “majority” government last year. He can now do what he

      wants where before he had a minority and could only do things with the support of the

      other liberal parties in the House Of Commons.

      Jan 12, 2012 at 2:27 pm · @ReplyReply to this comment ·
    • hyhybt
      hyhybt

      @MikeE: It seems like a good reason not to get *married* in Canada if your home won’t recognize it… but what’s done is done unless it’s *officially* undone. If nothing else, look at the trouble they’d be in if, say, they were each to marry someone of the opposite sex back home and then the law changed so as to recognize their previous marriage.

      Jan 12, 2012 at 3:23 pm · @ReplyReply to this comment ·
    • John McLaren
      John McLaren

      This is simply a legal argument being made by government lawyers because it affects non-Canadians who are non-residents and non-citizens using the Canadian courts to get a divorce. Perhaps their best remedy for divorce may have been to stay in the USA and get a divorce in a state like Mass., VT, or NY where their same-sex marriage would be recognized. How can a Canadian court be expected to enforce palimony or child support or other aspects of the couple who each lives in the UK and Florida? Get a USA divorce in the USA

      Jan 12, 2012 at 4:09 pm · @ReplyReply to this comment ·
    • MikeE
      MikeE

      it’s important to remember that Canada DOES have a one year residency requirement for divorce, regardless of gender.

      I think these women are trying to slip a fast one by us. They want the divorce without the hassles others have to go through.

      And yeah, why aren’t they simply getting their divorce in one of the US states that does recognize same-sex unions?

      Jan 12, 2012 at 7:34 pm · @ReplyReply to this comment ·
    • Scambuster
      Scambuster

      Let’s ignore the Harper apologists here and get to the crux of the matter.

      If this ruling is upheld, thousands of people from around the world have been deliberately scammed by the Canadian government.

      You know all of those pretty ads encouraging you to come to Canada to get married and enjoy equality? Most of them are paid for by the Canadian government, with the express purpose of getting LGBT couples from places around the world to spend cash on Canadian airlines, hotels, restaurants, and activities to stimulate their tourist economy. Thousands of people, taking the Canadian government at its word, spent perhaps thousands (or even tens of thousands of dollars) each to get married in Canada rather than in another jurisdiction. If Canadian marriage licenses are declared to be invalid if one or the other resident lives in a place without marriage equality, all of those people have been completely defrauded by the Canadian government in a big cash grab.

      There’s also a practical issue for Canadian residents or citizens living abroad or who have a spouse abroad. If your marriage license is invalidated due to living together in a place that doesn’t recognize marriage equality (like Georgia), or your spouse lives in an anti-gay place while you reside in (for the sake of argument) BC, the Harper government will also get YOUR marriage license invalidated.

      It’s important to point out the facts here — the policy advocated by the current government in Ottawa is clearly demonstrative of the Canadian government’s intent to scam foreigners to spend cash in Canada and also will invalidate the rights of Canadians who live abroad or have partners who are citizens of countries without marriage equality.

      Rather than induce the typical passive-aggressive Canadian nationalist knee-jerk, this should shame conscientious Canadians to the core and motivate them to get this stupid policy changed, ASAP.

      Jan 12, 2012 at 11:20 pm · @ReplyReply to this comment ·
    • John McLaren
      John McLaren

      QUEERTY is supposed to be a news site. Here it is 11PM EST and it was 4:45 this afternoon that Canada’s Justice Department rushed a press release out to assure everyone that they are drafting a new law that would allow “quickie divorces” for foreigners who were married in Canada.

      No foreign marriages have been invalidated by any court. It was only an argument presented by a lawyer.

      Now let’s see if straight Canadians married in Colorado three years ago can fly into Denver, show up at a US court and expect a quick divorce, despite the fact they are not American, are non residence. This couple should have taken their marriage certificate to VT or Mass where they could have gotten a “made in America” divorce subject to American law. Give me a break…

      Jan 12, 2012 at 11:58 pm · @ReplyReply to this comment ·
    • John McLaren
      John McLaren

      QUEERTY is supposed to be a news site. Here it is 11PM EST and it was 4:45 this afternoon that Canada’s Justice Department rushed a press release out to assure everyone that they are drafting a new law that would allow “quickie divorces” for foreigners who were married in Canada.

      No foreign marriages have been invalidated by any court. It was only an argument presented by a lawyer.

      Now let’s see if straight Canadians married in Colorado three years ago can fly into Denver, show up at a US court and expect a quick divorce, despite the fact they are not American, are non residence.

      Jan 12, 2012 at 11:59 pm · @ReplyReply to this comment ·
    • John McLaren
      John McLaren

      QUEERTY is supposed to be a news site. Here it is 11PM EST and it was 4:45 this afternoon that Canada’s Justice Department rushed a press release out to assure everyone that they are drafting a new law that would allow “quickie divorces” for foreigners who were married in Canada.

      Jan 13, 2012 at 12:01 am · @ReplyReply to this comment ·
    • Esculapio Mitiríades Torquemada de la Cueva
      Esculapio Mitiríades Torquemada de la Cueva

      @John McLaren: Actually, I think it’s supposed to be a blog. Everyone knows where to find breaking news.

      Jan 13, 2012 at 12:03 am · @ReplyReply to this comment ·
    • John McLaren
      John McLaren

      I work as a freelance journalist and documentary film maker in Canada. I only post news based or op ed pieces on this site. For some strange reason your firewall blocked my three attempts to provide real news from Canada.

      We know what happens once non factual news hits the USA. A majority of Americans to this day still believe that the 9-11 terrorists came into the USA from Canada based on early erroneous news report. All the terrorists had received visas from the USA, were resident there and had, in fact. taken flight training while living in the states.

      Stories like this about marriages being invalidated (when they are not) don’t serve any of us in the gay community.

      Jan 13, 2012 at 1:55 pm · @ReplyReply to this comment ·
    • Rolling Eyes (Again)
      Rolling Eyes (Again)

      “let’s see if straight Canadians married in Colorado three years ago can fly into Denver, show up at a US court and expect a quick divorce”

      If the US government was running ads to straight Canadians banned from being married in Canada saying “come to Denver and get married here, where you’re equal,” you might actually have a point.

      God, Canadian ubernationalists are as stupid and annoying as American ones.

      Jan 15, 2012 at 10:01 pm · @ReplyReply to this comment ·

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