Marriage between same-sex couples is legal in Canada, as it is in Belgium, the Netherlands, Spain and in Massachusetts, and it is expected to be legalized in South Africa before the end of the year. However, as a lesbian couple from England who were married in British Columbia in 2003 discovered last month (Wilkinson v. Kitzinger,  EWHC 2022), cross-border recognition of a Canadian same-sex marriage is quite another matter.
The case concerned the recognition in England of a marriage entered into in British Columbia by two women, Susan Wilkinson and Celia Kitzinger, who were then and remain domiciled in England. In proceedings brought before the Family Division of the High Court of Justice in London, Wilkinson, as petitioner, sought a declaration under s. 55 of the Family Law Act, 1986 that her marriage to the respondent, Kitzinger, is valid as a marriage in the United Kingdom.
In refusing to grant the declaration sought, the court noted that the U.K. Parliament’s response to the issue of whether gays and lesbians should be allowed to marry was to enact the Civil Partnership Act, 2004. This statute created the concept of civil partnership, available only to same sex couples, which made available to civil partners essentially every material right and responsibility presently arising from marriage, with the exception of the dignity of the form of the ceremony and the actual status and title of marriage. As the Act specifically provides that a marriage abroad between same sex partners must, upon registration, be treated as a civil partnership, the best that was available to the petitioner and the respondent was to have their Canadian marriage reduced to the status of a civil partnership.
At paragraphs 15 and 16 of his decision, Sir Mark Potter, President of the Family Division, noted:
“By the rules of private international law, whereas the form of marriage (subject to certain minor and immaterial exceptions) is governed by the local law of the place of celebration, the capacity of the parties to marry is generally governed by the law of each party’s ante-nuptial domicile. Occasionally, the courts will judge the matter of capacity by reference to the intended matrimonial home or by reference to the jurisdiction with which the marriage is adjudged to have its most substantial connection. In this case as already indicated, the parties are both domiciled in England and Wales and, following their marriage, returned to live here. It is thus clear, that, on any ordinary application of the rules of private international law, their capacity to marry is governed by the law of England.
“In the case where a person of English domiciles purports to marry in another jurisdiction, but the parties lack capacity to marry in English law, the marriage is not recognized in England.”
The purpose of this note is not to express any negative opinion on same-sex marriages, but rather to encourage parties who are foreign nationals or who are domiciled outside of Canada and who are contemplating a Canadian-made marriage to inform themselves about potential problems with the legal recognition of their marriage in their home jurisdiction as well as in Canada.
First, under the laws of all the Canadian provinces and territories, questions relating to the formal validity of marriage are governed by the law of the place of solemnization. There is no requirement that the parties reside in or be connected in some other way to the province or territory where the marriage is to take place.
Second, due, in particular, to the absence of a provision in the federal Civil Marriage Act that incorporates a territorial limitation, the law applicable to the legality of same sex marriages in the presence of a pertinent foreign element is generally governed by the law governing the essential conditions of marriage which is that of the “ante-nuptial domicile” of each party. However this rule is not being applied.
In the common law provinces and territories of Canada, marriage licences are being issued by clerks to persons from outside the country as though no foreign element is present. Presumably, the competent authorities believe either that foreign law is irrelevant or that if same-sex marriage is prohibited under the law of the domicile of either or both of the intended spouses, this impediment does not apply to marriage ceremonies performed or “solemnized” in Canada. They may justify their position on the ground that refusing to perform the ceremony would constitute discrimination on the basis of sexual orientation and thus violate the couple’s equality rights under s. 15 (1) of the Charter and s. 4 of the Civil Marriage Act.
In Quebec, there is no issuance of a marriage licence and it is the person performing the ceremony, known as the “officiant”, who must verify whether or not the parties have the right to marry each other. Thus, if under the law of the ante-domicile of either party, same-sex marriage is not legal, the officiant is supposed to refuse to perform the marriage ceremony. In practice, however, such ceremonies are being performed, presumably on the basis of the same arguments as mentioned above. By contrast, same-sex couples may validly enter into a civil union in Quebec even though it is not valid under the law of their domicile. (Art 3090.1 CcQ)
In my opinion, Quebec officiants who are solemnizing same-sex marriages prohibited under the law of the ante-nuptial domicile of either party are solemnizing a marriage which is either a nullity or which may be annulled. This is because neither ss. 15 (1) of the Charter nor the Civil Marriage Act was intended to apply to foreign tourists who have no right to marry under the law of their home state. Application of Canadian law to such couples, in my opinion, does not involve a “vital interest” to Canadian or Quebec society – a legally necessary step in justifying a refusal to respect and apply the laws of other nations that are normally applicable to govern the issue. In fact, I do not see any justification for a different approach in the Canadian common law jurisdictions.
I certainly acknowledge that the views expressed here could be seen as representing an “inconvenient truth”. Three serious inconveniences come to mind:
First, it places too great a burden on the officiants. Does the wedding planner need to engage the services of a professor of private international law before sending out the invitations?
Second, lack of recognition of same-sex marriage in their home jurisdiction (and a questionable validity of their marriage even in Canada) is a matter for the couples to deal with. If the marriage ceremony is meaningful to them, should we deprive them of something that brings them satisfaction?
Third, why nip a budding tourist industry in the bud? When did Nevada ever concern itself with whether its 24-hour divorce would be recognized elsewhere?
In recognition of these inconveniences and the realities of the law, I believe that the federal government should amend the Civil Marriage Act so as ensure the validity of same-sex “international” marriages solemnized in Canada as long as there is a substantial connection of the pertinent elements to Canada. If this approach were to be taken, then I suggest the Dutch model be adapted: If at least one of the parties is a Canadian citizen or is domiciled in Canada, the question as to whether same-sex couples may marry would be governed by Canadian law .This solution would also increase the currently slim chance of their recognition in other countries.
Jeffrey Talpis is a professor at the faculty of law at the University of Montreal.