Canada
is one of few countries in the world to admit same sex marriages to both
citizens and foreigners. For this reason, as many as 5000 foreigners are
married in Canada each year, a great number of them being same sex couples who,
unable to legally marry within their home countries, purposely jump through the
loopholes by getting married in countries where same-sex marriage is legal. Recently,
a lesbian couple who married in Canada in 2005 is now seeking a divorce. The problem
is, their marriage is not legally recognized in the countries they currently
reside in- UK and USA, Florida. The UK does not recognize Canadian marriages,
and same sex marriages are denied in Florida. The couple has no choice but to
come back to Canada for their divorce. Unfortunately for the couple, another
obstacle, one which also stands true for many other same-sex couples
married in Canada, stops them from getting their divorce- marriage laws in
Canada will not grant divorce if a couple has not been in Canada for a full year.
Having essentially nowhere to turn for a divorce, the couple, in their
submission to the Ontario court, has argued that the current marriage laws are ‘unconstitutional’
and “discriminatory to
same-sex couples, who can only get married in select jurisdictions around the
world” (CBC news- ‘The Law Behind the
Same-Sex Divorce Controversy).
The
Lawyer representing the Federal Justice Department has provided a
counterargument on the case. He argues that the women weren’t Canadian
citizens, and that their marriage isn’t recognized in their place of residence-
asserting that the marriage was not valid to begin with, and therefore cannot
be undone. However, if this is this case and the Canadian courts accept this
defense, then all same-sex couples who were previously married in Canada
because their home countries denied same-sex marriages will have their marriage
at risk.
Fortunately, the government does not
seem to be standing by this defense. Prime Minister Stephen Harper has
distanced himself from the argument, announcing that he was unaware of its existence
and that the federal government will not reopen the same-sex marriage issue.
Justice Minister Rob Nicholson has also made positive remarks on amending the
law so same-sex couples who were married in Canada will also be able to
divorce, so that “marriages performed in Canada can be undone in Canada”. Experts
in the field have also examined the Florida couple’s case, and made assertions
that their marriage is indeed valid- the couple had given consent to the
marriage, and nuptials were legal in the
jurisdiction in which they were performed.
I
personally see no reason for the courts to deny the couple their divorce. If
the current law, which states that couples must stay in Canada for over a year
to be granted divorce, is changed, no great harm will come to the justice
system of Canada. Laws are in constant need of revision to fit society’s
changing needs, and this is simply another one of the cases where laws made in
the past cannot fit recent problems and situations. Allowing the divorce and
changing the current law would greatly lessen the hardships and discrimination that
members of the homosexual community face.
Sources:
I like the information and ideas you've presented, Anna! I don't disagree with your post, but I do have a few questions.
ReplyDeleteFirstly, why should the government have to be responsible for this couple's divorce if they're not Canadian citizens... much less residents? The constitution is mainly put in place for Canadians, isn't it a little out of the ordinary for someone to use a foreign country's laws to defend themself? And if their marriage is technically nullified because their place of residence doesn't recognize it, then doesn't that achieve their desired result of a termination of their contract anyways? Moreover, if heterosexual couples have to meet the one year residency requirement as well, how is it discriminatory? Sure, same-sex couples are faced with the challenge that not many jurisdictions recognize their marriage, but that challenge is posed by other countries so why should it be Canada's responsibility to address it? Besides, the government of Canada made the facts very clear: in order to divorce in Canada you need to have a year of residency, and it is a well known fact that their marriage may not be recognized in other countries. It's not a surprise; if they were unhappy with Canadian laws, shouldn't it have been their responsibility to research a country where the regulations are to their preference?
I do agree with your opinion, these are just some ideas to consider. The post was generally well written, I just have one suggestion: you might want to rephrase the sentence "purposely jump through the loopholes". It seems to have a negative connotation, almost as if you're implying what they're doing isn't supposed to be legal. It might just be me though; otherwise, I think you have wonderful writing skills! You've done your research. :)
I think this issue comes more down to Canada's morals and beliefs, and the things Canada stands for. You're completely right to say that Canada has no legal obligation to change its laws in order to grant this foreign couple divorce. I also agree that their current argument about the law being unconstitutional and discriminatory is a bit exaggerated. However, all of this doesn't mean that as Canadians, we shouldn't try to improve the situation for same-sex marriage couples simply we're not obliged. Much like your argument about temporary foreign workers' rights, the Canadian government has no legal obligation to improve their conditions because they're not Canadian citizens. But as people who are embracing of variety and equality, we have the moral obligation to help out those who we can help out, because that's Canada's identity- it's what we do and what we stand for. Changing the current laws will not cause harm to the Canadian justice system, nor will it be extremely troublesome or controversial, so there's no reason not to change the law, and many strong reasons to change the law.
ReplyDeleteAnd you're right, the connotation does sound a bit harsh there :/ thanks for pointing that out! I suppose a bit of bitterness leaked out of me when I wrote this at 3:30 am *but I am still all for homosexual couples having the same rights as heterosexual couples*
Love the questions posed by Hannah... even if a bit fervently so as to render the connotation, potentially attacking in nature, despite the sweet compliments on her writing. I don't think it crosses the line, but I think Hannah likes to "stir the pot" enough to get a reaction and she is doing a fair job of this. Blogging might just be your forte Hannah. On another note Hannah, I am surprised that you seem to be questioning why Canada's constitution or laws should be changed for the foreigners who choose to marry here (you say they should have done their research). Conversely, perhaps it was Canada who has been exploiting foreign same -ex couples by marrying them in the firtst place, regardless of whether the marriage would be valid outside of Canada. A "take the money and let them run" sort of scenario maybe?
ReplyDeleteAnna as to your post and replies - I think you "shot" back just enough at Hannah and very cleverly using her same argument from the immigration law. Aahh... I can tell you are debaters here:) I also think your rationale for considering amendments to the law is very sound - society does change. When FH first opened, this issue was barely being discussed as a concept, let alone passes as law.
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