- Health, Wellness & Sports
- Equality Directory
Lambda Legal, the National Center for Lesbian Rights, the American Civil Liberties Union, Gay & Lesbian Advocates & Defenders, and Freedom to Marry on Thursday afternoon issued this joint statement in an attempt to clarify the confusing situation involving Canadian marriages of same-sex couples from foreign countries.
Here is the statement:
We write to respond to a news report from Canada that a lawyer in the current government has taken a position in a trial-level divorce proceeding that a same-sex couple’s marriage is not valid because the members of the couple were not Canada residents at the time that they married, and the law of their home jurisdiction did not permit them to marry at the time.
No one’s marriage has been invalidated or is likely to be invalidated. The position taken by one government lawyer in a divorce is not itself precedential. 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.
Canada permits non-residents to marry and thousands of non-resident same-sex couples have married there since Canada first began recognizing the freedom to marry for same-sex couples in 2003. Indeed, Canada's Parliament codified the equal right to marry for same-sex couples in 2005.
The message for same-sex couples married in Canada remains the same as it is for same-sex couples validly married here 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. There is no reason to suggest that Canadian marriages of same-sex couples are in jeopardy, or to advocate that people try to marry again elsewhere, as that could cause these couples unnecessary complications, anxiety, and expense.
The original articles
TORONTO, Canada -- Thousands of gay and lesbian couples from across the world who came to Canada since 2004 to get married are left wondering if they are now legally wed, after a Toronto court unexpectedly reversed national policy.
This shocking development is creating untold grief, confusion and hardship on the more than 5,000 gay and lesbian couples who spent thousands of dollars to go to Canada to get married. The policy reversal could impact spousal support, asset division, tax filings, employment benefits, immigration status, child custody and myriad other issues for the couples.
Prime Minister Stephen Harper told Canadian media that his Conservative majority did not have same-sex marriage on its agenda, but the court's reversal of federal policy has come under intense criticism.
The policy change came out of a test case filed in Toronto by a lesbian couple who are seeking a divorce. The couple, who reside in Florida and the United Kingdom, were married in Toronto in 2005. The court ruled that the foreign couple could not divorce because they were never really married ... concluding that their marriage is Canada is not legal because they could not legally marry in Florida or the U.K.
Presumably, foreign couples who married in Canada from places where marriage equality is legal are still considered legally married in Canada.
The couple's lawyer, Martha McCarthy, told the Toronto Globe and Mail that the ruling is a stunning reversal of policy:
“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.”
McCarthy told the newspaper that the ruling gives Canada a black eye and will diminish the nation's reputation as a haven for LGBT rights.
Federal lawyer Sean Gaudet said couples who came to Canada to be married must live in the country for at least a year before they can obtain a divorce. He also said same-sex marriages are legal in Canada only if they are also legal in the home country or state of the couple, according to the newspaper.
Under this reasoning, the newspaper reported, the federal government would recognize the validity of marriages that take place in Canada provided the same-sex partners come from a state or country that also recognizes same-sex marriage.