According to a story in the Toronto Star, a same-sex couple that got married shortly after the Ontario decision last year has now applied for divorce. Since the Divorce Act only recognises male-female marriages, they’ve applied for a constitutional remedy to have their right to divorce recognised: Now it’s divorce, same-sex style.
The couple had been together for five years, but split up five days after getting married. Asked about the timing, the lawyers for the two commented:
So I’m having a bit of trouble with the logic here. Recognizing that gays and lesbians who are married (unlike Mr. Rushfeldt, I don’t use the quote - unquote thing) should be able to get divorced further undermines family values because after all, they made their bed and undertook a lifetime commitment, and we should hold them to it, dammit! They should be like straight couples who get married and stay together 'til death do they part … oh, wait…
My sympathies for the couple in question, but the lawyer for one of them seems to have summed it up best:
It’s funny how now they’re encouraging us to stay married
As for there being “no law…that says they are married,” I’d respond by saying it’s already more or less a done deal. They see scheming to set a precedent that further entrenchs gay equality, I say no such precedent is necessary. If the federal government does nothing, we’d still have marriage eventually. Why go through the trouble to have a divorce, when the war’s been (for all intents and purposes) won.
A side-note, and I don’t want to hijack the thread, but did the Toronto Star really use “Pro-family” outside of quotation marks? I mean, that’s pretty awful. It puts us in the position of being anti-family. “Advocate for the traditional definition of mariage” may take up more space, but at least it doesn’t attack one side of the debate or the other.
I was surprised to see this story–I thought that the rewriting of the marriage laws to change “one man and one woman” to “two people” included the divorce laws as well. Guess I was being too logical. Or is divorve federal?
The substantive law of marriage and divorce are both areas of exclusive federal jurisdiction: Constitution Act, 1867, s. 91(26). The previous court cases have only raised the issue of marriage, by same-sex couples seeking to marry. Courts can only decide the legal issue raised by the case, so the decisions last year did speak to the issue of divorce. Now that issue has been raised in an actual case, so the court will have to deal with it.
Parliament, of course, is not similarly restricted. It could pass comprehensive legislation dealing with all aspects of this issue. You’ll have to ask the federal government why they’ve not done that…
If gay people are allowed to divorce, it threatens the very basis of a ten thousand year history of divorce being between a man and a woman, the fundamental principle upon which our entire civilization rests! The entire structure of divorce as we know it is in peril! Why, someone might just as well divorce a box-turtle!
I think the thing they have a problem with is the rather distinct possibility that the couple got married for the express purpose of getting a divorce; that is, they want to challenge the existing laws, and saw the possibility of filing for divorce as a sort of back door to doing so.
Yes, I suppose it’s theoretically possible that they were a couple for five years, decided to get married, and then in the course of five days discovered irreconciable differences. I think it’s at least equally plausible that it is some sort of legal manuever.
Even speaking as someone who supports the right of gay couples to join, if that’s what they’re doing, I don’t much of it.
Why? If gays are allowed to get married, then surely they must also be allowed to divorce. Someone has to challenge that law at some point to get it changed. Might as well do it sooner rather than later.
I tend to think that we’re all better served by a straight-up debate on the the merits of the issue. AFAIK, the issue of gay marriage is not fully settled in Canada; as here in the States, it’s being hashed out in different ways in different provinces. In that context, if what they’re doing is just getting a quickie divorce as a backdoor way to prove* they were really married in the first place it doesn’t seem honest or constructive to me.
*“Aha! You’re arguing with me so I must have paid!”
Well, but they got married in Ontario, where the highest provincial court has said same-sex marriages are legal. The federal government hasn’t appealed that decision, so it stands.
I remember reading about a similar couple about a year ago. They’d been together for several years, and everything was going along just fine, apparently. When the court decision came down, they proposed to each other, got into a flurry of wedding plans, told their families and friends - and then things started coming apart. They started thinking about the implications of marriage, property issues, wondering about a pre-nup, wondering if this really was it for both of them, their own expectations about their relationship - and put the marriage on hold. Eventually, they put the relationship on hold as well.
It’s not unknown in the straight community for the idea of the marriage commitment actually to put a strain on the relationship as they get close to the big day, or shortly afterwards (I think I’ve seen a stat that says the first year after marriage is one of the prime times for divorce). Five days may seem rather quick to end a relationship, but who knows? Some relationships can come apart very quickly under an unusual strain.
I had the impression (admittedly unclear) that the marriage decision was not uniformly applicable across Canada while it seems that (by a quirk of the relationships of the Constitution and various laws) a divorce decree would be applicable across the nation–and impose a presumption of marriage on those provinces and territories that have not yet recognized same sex marriages.
If my understanding is correct, then Mr. Rushfeldt’s concerns are tactically correct (regardless of their ethical merits) that this would seem to be an end run on the provincial governments to establish a national acceptance of same sex marriages. It is not an opposition to same sex divorce, but a reaction against attempting to use same sex divorce to manipulate the acceptance of same sex marriage.
I tend to doubt the seriousness of a five-day marriage, myself, (Northern Piper’s legitimate observations regarding the possibility of such an event, notwithstanding). I am not going to condemn the actions of MM and JH; I’m sure they are doing what they feel needs to be done. I would, however, point out that “contrived” situations have a tendency to backfire. If Canadian law is changed, based on a manufactured situation, I would fear a pretty harsh backlash.
Well, whatever else it might be, it’s not an end run on provincial governments. If it’s an end run on any government, its the federal. See, it’s up to the federal government to regulate marriage, while the provincial governments just manage the paperwork - hand out licenses, etc. So what’s happen is that the courts in 3 provinces and 1 territory have ruled that the federal regulations are in breach of the Charter, and they’ve ordered the provincial authorities to hand out licenses. Because these are just provincial courts, though, the precedents don’t take effect outside those provinces. Now, Ralph Klein’s assertions to the contrary, nothing about this affair is up to provincial governments. In short, their opinions don’t matter in the least.
Frankly, this is all largely irrelevant. I expect to see a same-sex marriage bill brought before Parliament shortly after it reconvenes in fall, since it’s a bill the minority government can be sure of passing without trouble, given that the Bloc and the NDP will both support it. Any court cases resulting from this specific case won’t be decided till long after that.
