By:Georgialee Lang/O Canada com
In 2004 Canada took its place as the first country in the world to grant a divorce to a same-sex couple. This was not surprising since Canada was one of the first countries to legalize same-sex marriage, an event that saw hundreds of gay and lesbian couples from around the world travel to Canada to celebrate their relationships with a legal marriage ceremony.
Many American couples married in Canada or in one of the dozen American states that permitted same-sex marriage.
At the time no one gave a moment’s thought to the inevitable time when these marriages, like their heterosexual counterparts, would disintegrate and divorce would be on the agenda.
While same-sex marriage is a hot topic among American legislators, same-sex couples who married north of the border found that divorcing their spouses was not an easy proposition.
Toronto family law lawyer Martha McCarthy became the first lawyer in Canada to tackle the same-sex divorce dilemma when her clients encountered a problem created by Canada’s Divorce Act, which had not been amended to address the influx of marriages involving non-resident visitors.
The Divorce Act requires that one of the spouses reside in Canada for one year prior to the granting of a divorce, a requirement that is almost impossible for a non-resident to comply with.
Ms. McCarthy brought a Charter of Rights and Freedoms challenge to the Ontario courts, an application that was moot once the federal government enacted the Civil Marriage Act in the summer of 2013. The legislation permits a same-sex couple to apply for a divorce in the Province where they married without a residency requirement, if they reside in a jurisdiction that does not permit same-sex divorce.
Additionally, each of the spouses must consent to the granting of a divorce, unless circumstances prevent such consent and then a court order waiving consent is required, either from a Canadian court, or the court where the couple resided during their marriage. The notion of obtaining a consent order from a court that does not recognize same-sex marriage, let alone same-sex divorce, seems a bit unrealistic.
Will there be a proliferation of same-sex divorces? In the last two weeks I have initiated three same-sex divorce applications, all from American couples who married in British Columbia, but live in states where their marriage was never recognized.
Others say that because many same-sex couples merely legalized their domestic unions after years of living together, they are more likely able to sustain their marriages.
Meanwhile, Lauren Czekala-Chatham, who married her same-sex partner in California in 2008, has brought a legal challenge against the government of Mississippi, where she and her partner lived during their two-year marriage, protesting her inability to obtain a divorce in her home state.