Thousands Of Canadian Gay Marriages May Not Be Valid

Yes, you read that right. According the The Globe and Mail, the Harper Government has said that thousands of marriages of foreigners who came to Canada to wed are not valid. This comes to light as a Toronto test case brought forward by a lesbian couple (American and English) seeking a divorce. They couple got married in Toronto in 2005, now sadly wanting a divorce, they were told that they cannot because they were were never really married. A Department of Justice lawyer said their marriage is not legal in Canada due to the fact that they could not have lawfully wed in Florida or England, where they are each from.

Their lawyer, Martha McCarthy told The Globe and Mail, “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.” She continued, “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.” She has a very valid point.

Becoming legal in 2004, Canada was one of the first countries in the world to perform gay marriage and an example of equality to other countries. In fact, that is why so many people came to Canada to get married – because they could. Now these thousands of people (up to 5,000 to be more exact) are essentially being discriminated against by having Canada essentially say that their marriage was only for pretend.

In response to all of this, Federal lawyer Sean Gaudet explained the law’s position by saying that couples who came to Canada to be married have to live in the country for at least a year before they can obtain a divorce. In addition, same-sex marriages are legal in Canada only if they are also legal in the home country or state of the couple. “In this case, neither party had the legal capacity to marry a person of the same sex under the laws of their respective domiciles – Florida and the United Kingdom,” he stated. “As a result, their marriage is not legally valid under Canadian law.”

Prime Minister Stephen Harper said, “We have no intention of further opening or reopening this issue.” Needless to say this will be a developing story.

  • EvChemical

    I always kind of wondered about this. It does kind of make sense, in the sense if the couple resides in another country, why would Canadian law apply to them?

    I’m not saying it’s right, but logically it makes sense. Besides, It should be the act of marriage that is the important part, not the legality of it. especially if they are in an area that doesn’t recognize gay marriage in the first place.

  • Slap to the face of people seeing this country as a beacon of liberty and rights.

  • EvChemical… the problem is marriage (and divorce!) should apply EQUALLY. The government is arguing that gay foreign gay marriages are null and void… but they are not arguing that for straight marriages. The law must apply equally and not discriminate. The residency requirement is fine, but not if it discriminates against gays and lesbians. The government needs to go and change the Divorce Act, not argue that gay marriage is unequal… but that would mean Stephen Harper and his cabinet would have to stand in defense of gay marriage.

  • EvChemical

    It SHOULD be, but as it’s not, it legally makes sense that the marriage isn’t binding if they live in an area that doesn’t recognize it.

    If I’m reading the article correctly, it’s only saying the marriage isn’t binding because their area doesn’t offer legal gay marriage. So it’s not discriminatory, it’s more a case of false advertisement on Canada’s part.

    If they said ALL gay marriages in Canada, between people from other countries were void, that would be discriminatory. If the couple lived in NY, or in any other country that acknowledges the union as legal, they wouldn’t be having this issue.

    I’d also stand to assume that if there were an area that didn’t recognize straight marriage, that any unions performed here by a man and a woman wouldn’t be recognized back home, thus would also be ineligible for a divorce.

    Again, it SHOULD be legal everywhere, it IS a human rights issue, but in this circumstance, it’s only as discriminatory as their home laws. Canada’s only at fault for not informing potential ‘spouses’ that their marriage is only binding if it is at home.

  • MisterKnyte

    As one who has officiate marriages (all straight) from three diffrent states … the burden of proof lies with the couple getting married to see that all “conditions” are met. And just like any other “contract” they when they sign they are saying that all conditions are true and valid.
    I can’t speak for the the UK, but when states in the US started to legalise gay marriage, other states were quick to make it very clear (adopting laws/amendments) that they would NOT recognise said marriages in their state.
    So why would they recongnise it from another country. It is not Canada’s fault … they can’t force our country to abide by any rulings they make for our citizens.
    As much as I hate to say it … these couples are responsable for the position they are in … not Canada.

  • Sparky

    Its just another loophole to deny gay and lesbian couples what should be rightfully theirs. I was proud of Canada for being a place that these couples could marry. Shame on the Harper government. Two steps forward, three steps back…

    I am not suggesting we can force other countries to recognize their standing but we certainly could of stood by our recognition of their status.

  • EvChemical

    I can’t believe I’m actually defending the Harper government, but as MisterKnyte and I have pointed out, this is NOT a discrimination thing, at least not from Canada’s legal view. If the home laws recognized the marriage of this couple (and the other “5000” unions) as official, they would be able to get divorced as per any other marriage. BECAUSE their residing area/country doesn’t accept the marriage as legal, it isn’t valid. Canada is not to blame. Had they lived here, or in a “legal” state/country the marriage would be official.

    It’s only discrimination of the residing countries that do not officiate gay marriages, NOT Canada.

  • Sammy

    In a way, I feel good about it, now i can tell people only us Proud Canadian can actually enjoy this freedom .

  • meledf

    ” (1) A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.”

    http://laws-lois.justice.gc.ca/eng/acts/D-3.4/page-2.html?term=resident#s-3.

    maybe if they LIVED here , it would be a story

    …next

  • CJLP

    This may or may not be a discrimination issue, but this is still incredibly appalling and embarrassing.

    I am re-iterating what Martha McCarthy has said. But I cannot believe that NO ONE in the government took the initiative and inform these couples and the public. That their marriage may not be recognized because their homeland doesn’t recognize gay marriage. At some point during wedding planning and filling out/submitting the marriage license application that this type of information should be known to the couple before they wed.

    Canada’s false advertising indeed.
    Let’s not tell them their marriage will not be valid, but we can still take their money. It’s very sad.

  • Norm

    The couple got married in Canada, they should be allowed to divorce in Canada. Period. It’s sad that other countries are so primeval in recognizing same-sex marriages done in Canada, but that isn’t the issue. It’s the Harper syndicate using federal lawyers to chip away at hard-earned gay rights because they don’t conform with the neoCon value system. They tried to be devious, got called out on it in a public way by a smart lawyer, and will rightfully be sued unless they fix the law pronto.