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Image for Canada court challenges marriage law

Canada court challengesmarriage law

A decision by a Toronto court has prompted international concern over the validity of same-sex marriages conducted in Canada involving citizens of countries which don’t have marriage equality.

The case involved a lesbian couple – one partner was from Florida and one was from the UK – who married in Toronto in 2005 and now sought a divorce. A Department of Justice lawyer looked into it and told the couple their marriage wasn’t legal anyway, since they could not have lawfully wed in their home countries.

This prompted concern that the Government of conservative Prime Minister Stephen Harper had reversed Canada’s policy of allowing foreign same-sex couples to marry under its laws by declaring that a Canadian same-sex marriage between foreigners is only valid if same-sex marriage is allowed in the partners’ home country.

Reading this front-page news, It Gets Better founder Dan Savage worried that “Canada’s conservative Government has turned my husband back into my boyfriend,” in a strongly worded reaction.

LGBT law advisory organisation Lambda Legal soon responded to reassure concerned couples. “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,” it said in a statement.

“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.”

The case will be reexamined next month by an Ontario Superior Court judge, reports The Globe and Mail.

A SHOCK FOR AUSSIES

Peter Furness, who married his partner Theo Phillip in Vancouver in 2006, had said today he felt his marriage was in a precarious position on reading of the court’s decision.

“Our marriage was legal when it occurred and for that to be cast into doubt is shocking,” explains Furness. “It is absurd that our marriage should be in doubt just because we happen to live in a country that is dragging its feet on the issue.”

It is estimated that over 5,000 of the 15,000 same-sex marriages that have been performed in Canada since 2003 involve non-Canadian couples, mostly from the US, with a smaller proportion from Britain and Australia.

A growing number of Australian companies and government departments recognise same-sex marriages entered into overseas, including the Bureau of Statistics which counted such marriages in the 2011 Census.

Overseas same-sex marriages are also recognised by the Tasmanian and Queensland state governments as state civil unions, automatically providing same-sex couples in overseas marriages with almost all the same rights as married couples in state and federal law.

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phildev

phildev said on the 12th Jan, 2012

UPDATE from Lambda Legal: "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."

bobbyandmimmi

bobbyandmimmi said on the 12th Jan, 2012

if this is true then WTF is wrong with the world, c'mon seriously!!!!!!!!!!! I am pretty sure there is something better that the government can do then to break up peoples lives!!!!

Irene

Irene said on the 12th Jan, 2012

Bobby, It's not the case.

This article is a total beat up. The Canadian government has said nothing of the sort. If the Ontario Superior Court rules that in Feb, then it will be an issue. At the moment it is not. If the Ontario Superior Court rules that the marriage is valid, then it will prove this article is bullshit.

Matt Akersten

Matt Akersten said on the 12th Jan, 2012

Thanks Phil and Irene. Good to get that quote from Lambda Legal. I'll update our story now. This situation prompted a strong reaction from It Gets Better founder Dan Savage here - http://slog.thestranger.com/slog/archives/2012/01/12/canadas-conservative-government-turns-my-husband-back-into-my-boyfriend - but I see he's updated adding more info below it. I'll do likewise. x

Irene

Irene said on the 13th Jan, 2012

Matt, It was clear from the outset:
"A Department of Justice lawyer looked into it and told the couple their marriage wasn’t legal anyway, since they could not have lawfully wed in their home countries. Their case will be reexamined next month by an Ontario Superior Court judge"
ie: A public servant's opinion is not government policy, or even government opinion.

Matt Akersten

Matt Akersten said on the 13th Jan, 2012

Indeed. I'm happy to stand corrected and have now amended our story.

megawatts

megawatts said on the 13th Jan, 2012

If they would just allow same-sex marriages, the courts would have more time for other big issues. I don't even see how same-sex marriage is an issue anyway! Everyone should have access to the same rights - and what marriage does is allow the couple certain rights. It's not even a religious thing anymore, marriage - it is now, at a basic level, a legal proceeding.