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U.S. same-sex couples who marry in Canada face challenges in divorcing
By Elaine Wiltshire

November 13 2009 issue


[Jeremy Bruneel / Stocko.cc]
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The phrase “till death do us part” has taken on a very literal meaning for same-sex couples seeking to end their marriage.

Many same-sex couples from the U.S. travel to Canada to get married, but what happens when the honeymoon’s over and forever is just too long? Couples who live in states that do not recognize same-sex marriage are also living in states that do not recognize same-sex divorce.

“It would be a nullity in law, because they don’t recognize [same-sex couples] to be married — so of course they won’t divorce them,” says barbara findlay, a B.C. lawyer whose practice focuses on human rights and family law. “In other words, if [the state] recognizes them [as married] for the purpose of divorce, they’d have to recognize them for the purpose of everything else and they don’t want to do that.”

But heading back to Canada to obtain a divorce is not as simple as it sounds. In Canada, the Divorce Act states that one of the spouses must have been “ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.”

“That means having more than just a mailing address,” explains findlay. “It means having a personal presence according to case law, and that turns out to mean that for people who contracted a marriage here that don’t live in Canada, they are effectively denied a divorce.”

To make matters more complicated, even if one spouse is willing to reside in Canada for the requisite period of time, they are subject to visa requirements. An American citizen can usually enter Canada and stay for six months without a visa, but after six month must apply for an extension. In most circumstances, visitors to Canada are also not allowed to work.

“So unless they happen to be very wealthy and have nothing better to do with their time than to hang out in Canada for a year, they really can’t get a divorce here,” says findlay. In other words, they are stuck in a divorce catch-22.

“It’s an example of inequality,” says Evan Wolfson, executive director of Freedom to Marry, an American coalition committed to winning and keeping the freedom to marry for same-gender couples, and the author of Why Marriage Matters. “The denial of divorce and access to the rules and protections of divorce is a glaring example of how cruel and harmful the gay exception is.”

From a legal perspective, one of the protections built into the marriage contract is a set of rules and a system to dissolve the marriage, Wolfson points out, “and gay people need those protections the same as non-gay people do.”

The problem is really a two-fold issue involving both Canada and the U.S. and encompasses broader social mores.

Canada’s residency requirement stems from Canada’s ambivalence about divorce, says findlay. “The amendments to the Divorce Act which happened in 1968 and 1985 were very controversial, because people said it would then make it then possible to get divorced for just any reason at all — something that was regarded as a bad thing.”

And although there was a general agreement at the time that ending a marriage by divorce was acceptable if one spouse was abusive or committing adultery, “there was no agreement that a person ought to be able to end their marriage just if they wanted to,” she continues.

But this issue really resides in the U.S. and the fact that the majority of the states do not provide any protections for gay couples.

According to information provided by Freedom to Marry, while 40 percent of the U.S. population live in a state that provides protection for these couples, only 14 percent live in a state that grants gay marriages or honours out-of-state gay marriages.

The problem is “caused by the discriminatory patchwork [of rules] that many people have to navigate across national borders, as well as from state to state,” says Wolfson.

Although both Wolfson and findlay agree that Canada is not to blame for this state of divorce limbo, Canada could be taking steps to make couples aware of these potential complications. “I think Canada’s ability to address this quickly is probably greater than our ability here in the United States to solve it across the board in the short-term,” says Wolfson. But “the real answer lies down here and that’s to stop discriminating and to catch up with Canada.”

Findlay agrees, stating that Canada seems to be falling short in terms of taking responsibility for these couples, but that real change will come with the legalization of same-sex marriage across all states.

“The resolution that I hope for is that the states that currently don’t recognize same-sex marriage will be urged or compelled to do so — that will mean that the problem will go away,” she says. “In the meantime, Canada should be up front and let people know when they apply for a marriage licence what’s involved in ending the marriage.”

Wolfson is quick to point out that several states are taking the steps necessary towards equality, which he says is “great in the grand arc of social justice,” but “it doesn’t help some of the people who need help right away.”

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