Fair enough. But I can still bitch about their PR skills, right?
The CanaDoper Café (2012 edition of The great, ongoing Canadian current events and politics thread.)
The Prime Minister commenting on a case before the courts would be an appallingly unethical thing to do, and his resignation would be rightly called for by the Opposition.
I was trying to think of an American state, and Massachusetts was the first state that came to mind. No idea why. I might as well have said, “Missouri,” or “Colorado.” So, you can substitute those, if you like.
A “Reno divorce” is a divorce that occurs in a jurisdiction that has no residency requirement. It is called that after the city of Reno, Nevada; where residency requirements for divorce were either very brief, or non-existent (not sure which).
Dammit, you’re right.
We live in a stupid world, don’t we?
That’s the comity issue I mentioned earlier: the courts in the English common law tradition have normally taken the position that (a) you’re either married or you’re not; and (b) capacity to marry is governed by the individual’s domicile, not by temporary trips to another country. If you accept (a) as the general principle, then allowing citizens of one country to circumvent their country’s marriage laws by travelling to another country, getting married there, and then returning home, can be seen as one country imposing it’s marriage laws on another country.
However, maybe the time as come to re-consider (a), as Malthus suggests. If the law instead is that your marriage status may vary depending on what country you are in, then there is less reason to worry about the law of the person’s domicile. (and I note that Malthus mentions that some court systems already do not accept (a) and are willing to allow another country’s marriage laws to apply in their own country in this indirect way.)
Thanks to all the legal types for working on clearing up this confusing and sensationalized story. 
I’m kind of hung up on the “you’re either married or you’re not” part of it. I understand the principle behind it and can kind of see how it’s a result of time and common law rather than explicit legislation.
What I’m wondering, though, is what does it matter if something that is legal HERE is illegal THERE in this case?
We allow 18 year old Americans to come up to Québec to drink alcohol - I know this is an entirely different set of laws, but it’s not like we are preventing otherwise legal activity on the basis of “it’s illegal where you come from, so you can’t do it.”
If Jill and Kathy come from Florida to get legally married in Canada, then return to Florida and live entirely under the applicable laws of Florida, then I don’t see how that invalidates the Canadian marriage. It simply means that they cannot (by choice) benefit from some/most/all of the rights that the marriage provides them with. Not using your rights doesn’t mean you no longer have the right to them, right?
Are there international tax issues? Property issues? Even if the people never return to Canada, earn income in Canada or own property here? Is it a matter of “ensuring” that no one is married to more than one person, anywhere in the world (to prevent Jill from marrying Mike in Florida?)
What rights does being legally married HERE confer (or take away) to someone who is choosing to live elsewhere?
Sorry, this is kind of a confusing post. This whole thing is just silly to me.
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Ha! I ninja’d YOU!
Jesus, if you guys start charging us your lawyerly rates…oh yeah, the SDMB discount! So, that’s a nice beer next time we’re in town? 
Those are good questions. Historically, one of the big reasons for this policy (aside from the stigma against “living in sin” - would a nice girl be content being married in England, but a floozy when they went on holiday to France?) was the question of legitimacy of children. If you were married in one jurisdiction, and normally lived in another jurisdiction that didn’t recognize your marriage, would your children be legitimate? That was one major reason for the “all or nothing” approach. Now that most jurisdictions have done away with the legitimacy/illegitimacy distinction, that isn’t as pressing.
But, there still has to be a rule that governs that applies to all situations. The example you give of a couple coming from Florida, getting married in Canada, and then returning suggests it shouldn’t make much difference. But let’s change the hypothetical.
What if one of the couple is from Ontario and the other is from Michigan? They get married in Ontario, because they can’t get married in Michigan. Suppose one owns a house in Toronto and the other owns a cottage on a lake in New York. And they have financial assets in both countries.
Michigan doesn’t recognize the marriage, but my understanding is that New York might.
And then one of them dies, intestate. Does the other inherit anything? What if there are relatives with competing claims? Does a probate court say they’re married for some property purposes, but not for others?
It can get very messy very quickly.
Maybe it is time to re-examine the “married - either yes or no” policy. But you have to take all sorts of hypotheticals into account, particularly messy ones, not just the cleanest ones.
The difference is that a kid who comes to Canada to drink is drinking in Canada. A 19-year-old soldier stationed in Fort Drum, NY cannot drink in the State of New York because the law says 19-year-olds can’t drink in the State of New York. The law doesn’t say they can’t drink in Ontario, so if he and his buddies drive up and get loaded in Kingston, they are not breaking any law. Laws against drinking are laws against a specific action that is taken at a specific time and place. The law in New York ends at the state border.
To be honest I think the legalities have been nicely covered and the upshot is this:
- Divorce law is really, really, really complicated.
But allow me to offer some insight into some of the reasons.
Divorce law (and I have some recent experience with this, I am afraid to say) is generally not concerned with your wedding. It’s concerned with your marriage. The divorce process, which even in its simplest form is much more complex than the marriage process - I would guess that I put 40 solid hours of work into my divorce, which was totally uncontested and amicable and involved no arrangement of spousal or child support - is largely concerned with the content of your marriage; that is to say, the things that happened when two adults acted as spouses. The property they accumulated, children involved, the basis for divorce (you must demonstrate a reason for divorce; a year’s separation, adultery, or cruelty) separation agreements if applicable, and such financial arrangements as might be agreed upon or fought over. You can get into this shit in Ontario without even ever having had a wedding at all, since Ontario recognizes common law marriage, which for most purposes (but not all) is like a formal marriage.
If you want to go out and booze it up as a 19-year-old, that’s a decision you make tonight, and if you cross the border to do it legally it hasn’t anything to do with what happened to you yesterday. But your divorce absolutely DOES have loads to do with what you’ve been doing for as long as the law considers you to have been married.
The problem is that people who get divorced are silly, often insane, and so the law is rife with attempts to circumvent idiocy, but in so doing loopholes will come up, as has happened here.
The government evidently plans to correct this, but of course they might well need the cooperation of the provinces to do so.
Innis & Gunn!
Thanks for that - that’s a very helpful answer. I wasn’t thinking about messy situations (though perhaps I should have been, as I thought of those questions while vacuuming…!)
I am damn glad I’m not a lawyer.
I need to go shower then fold some laundry. Who knows, I might need more explanations after!
I too have laundry and ironing calling, sadly.
Pretty swift response:
Looks like they are going to override the common law conflict-of-laws position through a legislative amendment.
If you find conflict of laws issues confusing - welcome to a club that contains most actual lawyers.
It’s a notoriously difficult and confusing area of law. The complications are caused by three factors:
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Different jurisdictions do things differently. Sometimes the differences are largely cosmetic, sometimes they are fundamental differences of opinon on real issues of substance.
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People can, and will, look around to find the best jurisdiction for them in a process known as “forum shopping”. This gay marriage tourism thing is an example of that. In the vast majority of cases, forum shopping is discouraged, because if a legal situation is good for one person it is often correspondingly bad for someone else (for example, if the country of Malthustan has a law that persons with the name of Malthus always win court cases, you may find it slightly unjust if I decided to sue you in Malthustan even if neither of us has any cinnection with that country). Things like gay marriage tourism are an exception to that generality, as it is difficult to see how anyone is worse off.
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Courts and legislatures like to make nice to each other by, insofar as they can, give recognition to each other’s judicial decisions and laws. This is a process known as “comity”. So, for example, a court order made in one country, subject to all sorts of caveats, will generally be enforced in another, etc.
There is a tension between these factors that works itself out in conflict of laws. For example, courts like to recognize each other’s judgments, but dislike people forum shopping; so in Canada courts look to whether there is a “real and substantial connection” between the parties, the case, and the jurisdiction before deciding whether to enforce.
So that’s why in the case under consideration, the marriage was deemed invalid. Being residents of a jurisdiction that doesn’t recognize same-sex marriages, they couldn’t legally enter into a valid marriage in Canada, because eligibility requirements depend on their actual residence. So their marriage was invalid at its outset. (Of course, Canada usually doesn’t check this, which is why they were married in the first place.)
I wonder how this works when we’re not dealing with temporary trips, but with people moving around. If a same-sex couple gets married in Massachusetts, which is at the time their state of residence, and then moves to Utah, what happens with their marriage?
I think that at this point in time, there’s no other way to go about it. We know some marriages, while valid in a particular jurisdiction, will not be recognized in others. A married Canadian same-sex couple can take a trip to the US, but they’re quite aware that in most states, their status won’t mean anything. So while having all marriages be recognized in every jurisdiction would of course be the ideal situation, it’s not something we can plausibly reach for. Even when we disregard same-sex marriages, we can have problems. For example, RickJay mentions that Ontario recognizes common law marriages. Quebec doesn’t.
From Malthus’s article, this new legislation will recognize the fact that some marriages celebrated in Canada are valid in Canada, but not elsewhere. The article also mentions that the government will not make any changes to the Divorce Act yet. So some couples might find themselves not able to divorce anywhere.
It’s funny, I thought the concept that some marriages may be valid in some places, but not in others, was already recognized. I thought these American same-sex couples who came to Canada to get married did it as a symbolic act and as a form of political protest, not because they thought it would really make them legally married in their state of residence.
It varies. For instance, although same-sex marriage is not available in New York, New York law will recognize a same-sex marriage that is valid in the place it was performed. I think one of the other little states on the seabord (Delaware? Rhode Island? Providence Plantation? ) takes the same position. So a New York couple that got hitched in Toronto will be very concerned with this issue.
See this article for, instance: Canada’s Justice Minister looking to Clarify Law