Thousands of same-sex couples who came to Canada to get married are assured they have the right to end their marriages now that a Toronto judge has granted the first such divorce.
“We had some kind of moral responsibility,” lawyer Martha McCarthy, who represented the women, known as L and M, said on Tuesday after the divorce was granted. “People were holding in their hands marriage certificates we solemnized that they couldn’t get out of.”
The federal government initially tried to block the divorce of L and M, two professional women in their 30s, arguing the marriage was not valid because their home jurisdictions of Florida and the United Kingdom did not recognize it. By extension, that meant thousands of other marriages solemnized in Canada were legally meaningless. Even if the couple had been deemed married, they would have had to meet a one-year residency requirement in Canada before the divorce could be granted, Ottawa said.
Ms. McCarthy filed a challenge on their behalf under the Canadian Charter of Rights and Freedoms, but the case was pre-empted when Prime Minister Stephen Harper promised to fix a gap in the law. His government did so this summer.
“We have addressed a legal unfairness for couples who came to Canada to get married but who then found they were unable to dissolve their marriage because their Canadian marriage is not recognized in their country of residence,” said Sean Phelan, a spokesman for the justice department.
The new divorce rules apply to couples who live in a jurisdiction that does not recognize same-sex marriage. The couple has to live apart for one year, but Canadian residence for a year is not required. Both parties need to consent to the divorce. If one party denies consent, the other can challenge that denial in Canadian or foreign courts.