A lesbian couple seeking a divorce in Canada has been told that their 2005 marriage in Toronto was never valid.
The binational couple—one partner lived in Florida and the other in the United Kingdom at the time of their marriage—had gone to Canada to wed. Neither that U.S. state nor the U.K. performed same-sex marriages at that time; Canada legalized same-sex marriage in 2004.
The Globe and Mail reports that during the legal proceedings, the government told the couple that they could not divorce because they were never really married. The government maintained that, as foreigners, the couple was not legally able to marry in Canada because their home jurisdictions would not have recognized the union.
Activists are wondering why, after nine years, this apparent legal glitch is suddenly being noticed, especially after the country’s tourism bureaus and wedding providers implemented campaigns in U.S. media to attract same-sex couples across the border.
“It is scandalous. It is offensive to their dignity and human rights to suggest they weren’t married or that they have something that is a nullity,” Martha McCarthy, the lawyer for the unnamed couple, told the Globe and Mail. She accused the provincial government of passing to buck on to the federal government. “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 licenses to perform marriages across the country to non-resident people.”
With the ruling denoting the couple’s marriage was never legal, Canada’s Conservative government under Prime Minister Peter Harper appears to be adopting a hard line in social affairs. But Harper, when pressed by reporters, said, “We have no intention of further re-opening or opening this issue.”
Residency requirements for performing same-sex marriages have been used against non-resident couples within the U.S., most notably in Massachusetts. Though the state legalized marriage equality in 2004, then-Governor Mitt Romney invoked a 1913 law that prohibited people from marrying in Massachusetts if their marriage wouldn’t be legal in their home state. The law was originally intended to prevent interracial couples from the South from marrying in Massachusetts, but Romney applied the same law to same-sex couples from any state that didn’t recognize such unions. (The legislature and Romney’s successor, Deval Patrick, repealed this rule in 2008).
The Globe and Mail article suggested that 5,000 of the approximately 15,000 same-sex marriages performed in Canada since 2004 were for non-Canadian couples, mostly from the U.S.
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