Is this actually something the Conservative government is doing? No member of goernment has said anything like this; it was an argument made by one lawyer in the justice department.
Where’s the “viscious” hatred in a govenrment that hasn’t tried anything of the sort and seems to be rushing as fast as they can to close the loophole? When did the Conservatives make any more at all to “nullify gay marriages”? In other words, cite? Or at least read the story a little closer?
This issue has been lurking for quite some time. There are a lot of common law / conflict of law cases which draw a distinction between capacity to marry (which is traditionally governed by the law of the individual’s domicile) and formalities necessary to perform a marriage (which is normally governed by the law of the place where the marriage is celebrated). If same-sex marriage is considered a matter of capacity, then I can see the argument that it’s governed by the law of the individual’s domicile. However, I’m not sure, without doing research, on whether those older cases are still good law. I’m just surprised that it’s taken this long for this issue to arise.
I don’t get it. Since when do we rely on another country to determine whether or not something is legal here? You can’t go issuing marriage licenses for years and then suddenly say “oh, by the way, just kidding because [othercountry] wouldn’t do it!”
Why does divorce have a residency requirement, but not marriage?
Why is a government lawyer trying to use this argument to nullify marriages, rather than the government saying “our laws seem to have a conflict, let’s correct that so that all these marriages are legal”? What the Conservative government isn’t saying is that they will fix this without nullifying any marriages, and that is offensive.
I’ll give Harper the benefit of the doubt that he wasn’t really aware of this and needs to get informed, but I fully expect him to fix this, since that’s the right thing to do.
It’s a smarmy tactic by a federal lawyer.
This is what I’m thinking too. It’s going to take some research before anybody knows for sure what can happen.
The answer to that is very long. Suffice to say that until we get “Reno divorces” in provincial law, we’re going to have this problem.
For those not in the know: Divorce is a weird, quasi-mix, of federal and provincial law. There is a federal Divorce Act, but the provinces, using their own divorce statutes, generally do the work and make the rulings, within the feds’ laws and regulations. I’m back to the necessity of the research that Northern Piper alluded to. Until that is done, we won’t be able to knowledgeably comment on the legal aspects.
Personally, I will agree that this sucks.
Each jurisdiction decides whether a marriage performed in another is legal.
For the most part, this is obvious. Alberta recognizes Las Vegas, Nevada, USA marriages. So does Quebec. So does the state of New South Wales, in Australia. And California. Oklahoma recognizes a marriage performed in London, UK. The courts in Perth, Western Australia recognize a marriage performed in Nassau, Bahamas. And so on, and so on.
The problem arises when a marriage performed in one location is valid, but another says it isn’t. This is the quandary our gay American friends find themselves in: they were legally married in Canada (in Ontario), but their home jurisdiction (say, Massachusetts) doesn’t recognize their marriage as valid because it is a same-sex marriage. Massachusetts says they were never married; and as such, cannot get a divorce in that jurisdiction. So, they seek a divorce in the jurisdiction that married them (say, Ontario), only to find that they do not fulfil the residency requirements; and thus, the jurisdiction will not divorce them.
I do not know why the federal government says that the marriages were invalid to begin with. Marriage is a provincial responsibility, and the provinces’ say-so in this area trumps the feds’, as per s. 92 (12) of the constitution. The feds do control divorce, as per the Divorce Act, but as I recall, that lays the groundwork. The provinces fill in the details.
The validity of marriages where there is a cross-border component is a fertile area for questions of conflict of laws (also called private international law) to come up. Marriage is regarded as a personal status, and as much as possible, conflict of law analysis is that a person’s marital status shouldn’t vary depending solely on which jurisdiction they happen to be in at a particular time. For instance, it doesn’t make much sense to say that a person is married if they’re in Ontario, but if they cross the border into Michigan, they’re not married, but then going back to Ontario the next day they’re married again. Because marriage carries so many legal rights and obligations, the analysis under private international law is, as much as possible, to ensure that a person’s marital status is the same regardless of the jurisdiction they’re in at a given moment.
It also raises questions of what’s called “comity” - that is, that one nation should not try to impose their laws on other nations. To take a less controversial example, suppose that in Canada, the Parliament passes a law that says first cousins cannot validly marry. The government of Canada has reviewed the issue, and has decided as a matter of public policy, that’s not valid.
But suppose North Dakota allows cousins to marry. Jack and Jill are first cousins, Canadian citizens, living in Saskatchewan. They want to get married, but lack capacity to do so in Canada.
If they cross the border to North Dakota, get married, and come back to Canada the same day, should Canada recognize that marriage? are they truly married? They live in Canada, are Canadian citizens, have no ties to North Dakota, and only went to North Dakota to get married, being in the state for less than a day. They may never go back to North Dakota.
Should North Dakota law trump Canadian law, for Canadian citizens living in Canada?
Last time I looked at this, a long time ago in a a law school far, far away, the general rule was that personal capacity was based on the law of the place where the person lived, not on the place where the marriage was celebrated. If that is still the rule under private international law, then I can see the argument that Jack and Jill can’t acquire the capacity to marry just by crossing the border for a day. But, it’s an interesting issue and no doubt will trigger some interesting legal arguments and learned academic articles before it gets settled in this case.
I don’t think you’re being fair to the federal lawyer, for two reasons.
First, if the federal government has been named as a party to this case, then the lawyer assigned to the file is required to do a thorough review of the law. If in the course of the lawyer’s research, he or she finds a legal issue that is directly relevant to the case, the lawyer is required to point that out to the person in the federal government who has assigned the file to the lawyer. The lawyer in this case evidently came across this issue of capacity. Alternatively, the capacity issue may have been raised by one of the other parties to the case, and the federal lawyer needed to respond to it.
Second, a lawyer going into court is not a free-lancer who can raise whatever arguments he or she wishes; lawyers can only act on instructions. Once an issue has been identified as being relevant to the court case, the lawyer has to seek instructions from the client, outlining the legal issue and asking the client for instructions on how to handle that issue. In this case, *someone *in the federal government gave this lawyer the instructions to raise the issue, or else the lawyer wouldn’t be doing so. Lawyers have a duty to carry out the client’s instructions.
I just wanted to link to this person’sfacebook note. I think it has a very nice summary of the issue.
This is confusing. I have no idea what a “Reno divorce” (Reno Depot? Reno Nevada? Ginette Reno?) might be, let alone what it would take to have one/mean if they were possible/whatever.
The residency requirement still doesn’t make sense, but I’ll accept that it’s a hurdle to divorce that applies equally to hetero- and homosexual couples.
It’s the argument that “this marriage wouldn’t be legal where you live, so your marriage was NEVER legal” is clearly the discriminatory part. I’d be interested in knowing whether there are any such cases among heterosexual couples - say, interracial or interfaith - and I wonder if the government (and it IS the voice of the government, through their lawyers) would be making the same argument. By the same argument, if the case couple were to move to Ontario for a year today, then divorce, was their marriage still never legal because their permanent residence state still not allow it?
I understand that each jurisdiction decides whether a marriage performed in another is legal. I think it’s entirely fucked up that after a half dozen years, one of the arguments our pathetic government is making is that a marriage performed in it’s own jurisdiction is suddenly illegal. Did we give up sovereignty overnight or something?
I understand that it takes legal research to find out exactly what the laws say and whether there is a loophole/issue that needs to be examined. But what the government - what Stephen Harper NEEDS to do - TODAY - is stand up and say “We will be examining our laws to fully understand how they apply to this case and we will amend them in order to ensure that all legal marriages performed in Canada remain legal. It might take time, but it will be done.”
Isn’t some sort of stay or suspension of a law possible while twisty legal matters like this are examined? This could totally have been handled better, and shame on Stephen Harper and his government/lawyers for having failed to man up and declare that they will resolve this fairly.
Heh…and if they leave it up to the lawyers and the courts…isn’t that the Conservative boogeyman of legislating from the bench? Guess it might be ok if it results in something their moron homophobic constituents would like… :rolleyes:
That’s not quite right, Spoons. The provinces only have jursidiction over the solemnization of marriages - that is, the provinces say what formalities are needed for a valid marriage, whether you need a licence or banns, who can perform the marriage, what paperwork needs to be filed, and so on. The provinces do not have the authority to determine the substantive law of marriage, such as capacity to marry, and whether marriage should be open to same-sex couples. Those substantive legal issues are assigned to Parliament by s. 91(26) of the Constitution Act, 1867. That was the authority for the federal Civil Marriage Act of 2005, which implemented same-sex marriage across Canada.
Also, the provinces don’t have any divorce jurisdiction - that is, they cannot pass a law that ends a valid marriage. Only Parliament can do that. What the provinces do have jurisdiction over is property and civil rights. They can pass laws that say, in the event of a marital break-up, here’s the law that governs the distribution of the matrimonial property.
As for the basis for the federal argument that the marriage in this case may not have been valid to start with, I think it’s likely a question of their understanding of the rules of private international law which apply to cross-border marriages, as outlined in my reply to mnemosyne.
Disclaimer: I’m only going by media reports here, and have not had to look at this sort of issue for a long time, so this is definitely “off the cuff” talk. I have no idea how this matter is going to shake out, but it will be interesting to watch.
[QUOTE= mnemosyne]
I’d be interested in knowing whether there are any such cases among heterosexual couples - say, interracial or interfaith
[/QUOTE]
Yes, there are such cases dealing with heterosexual couples - since that’s what all marriages were until recently. That’s the basis for the distinction between capacity to marry and formalities of marriage that I mentioned earlier.
For instance, at one time in England, a man could not marry the widow of his deceased brother. (Henry VIII had that enacted into law at the time of his troubles over the annulment.) But other European countries did not have that restriction. It happened in one case that a couple wanted to get married, but she was the widow of his brother, so they couldn’t get married in England. They went to Denmark (if I recall correctly), got married, then came back to England. The issue somehow came up in court, and the English courts ruled that they were not married; they could not acquire capacity to marry by going to another jurisdiction.
(Another disclaimer: I’m just going by memory here, but that’s my best recollection.)
Now that same-sex marriage is a reality, it looks like that same legal analysis which arose solely in the areas of opposite sex marriage is starting to be applied to same-sex marriage.
[QUOTE= mnemosyne]
I understand that it takes legal research to find out exactly what the laws say and whether there is a loophole/issue that needs to be examined. But what the government - what Stephen Harper NEEDS to do - TODAY - is stand up and say “We will be examining our laws to fully understand how they apply to this case and we will amend them in order to ensure that all legal marriages performed in Canada remain legal. It might take time, but it will be done.”
[/QUOTE]
So should Canada be able to impose its marriage laws on other countries? or should we change our laws so that marital status varies depending on whether you’re in Canada or elsewhere?
as I said, I’m surprised it’s taken so long for this issue to arise.
You keep sneaking posts in on me.
That Facebook post was very informative, as were yours, Northern Piper.
I’m still not liking how it’s being handled, and I still think the lawyer is smarmy (sorry if he or she is a friend of yours, but, really, aren’t most lawyers kind of smarmy? 
(says the granddaughter of a judge)).
I still think Harper needs to man up and say something: and if tourist marriages aren’t desired, then don’t fucking issue the licenses.
Why on EARTH are there two weird-ass levels of responsibility (provincial and federal) when it comes to marriage and divorce? The more I learn about this, the more fucked up I think this country is!
:smack:
I understand your point, but as per this particular example, doesn’t Massachusetts actually recognize same-sex marriages? If a same-sex couple gets married in Ontario, will their marriage be recognized in Massachusetts, and will they be allowed to get a divorce there? (I understand from your post that no matter what, they wouldn’t be allowed to divorce in Ontario – despite being married there – due to them not satisfying residency requirements.)
I fail to see how this means that Canada is imposing anything on another country. If you can marry in Canada, you can divorce in Canada (subject to the legal requirements that need to be met for divorce, naturally).
This means absolutely nothing in regards to how other countries handle these couples - it just means that your rights as a married couple are, unfortunately, limited to Canada and other countries that recognize SSM.
I see no need to declare the marriages invalid - just make it damn clear from the start that, should they wish to be divorced, they are going to have to do it the same way as any other Canadian couple. Sounds pretty damn straightforward to me.
In other news, displaying some commonsense, the federal government will lift the publication ban that prevented the media reporting election results while the polls are still open, to reflect the realities of the Internet. Good call.
This is what I’m wondering (and I’ll admit that I haven’t followed the issue very closely). Have the same-sex couples in question been told that their marriages were invalid, or only that they had no right to divorce in Canada due to not fulfulling residency requirements? Like mnemosyne, what I heard was that their marriages were declared invalid. But from what I’m reading in this thread, it seems that the issue was that Canada had no right to impose its marriage law on their jurisdiction of residence (which is something I agree with). So it would suggest that they are legally married in Canada, but not in their jurisdiction of residence, but additionally have no means to divorce since their jurisdiction of residence does not recognize their marriage, and Canada has residency requirements for divorce.
The solution would seem to be to slacken residency requirements for divorce, which is what I understand Northern Piper means by a “Reno divorce”.
[QUOTE= mnemosyne]
Why on EARTH are there two weird-ass levels of responsibility (provincial and federal) when it comes to marriage and divorce? The more I learn about this, the more fucked up I think this country is!
[/QUOTE]
For two reasons.
First, the Fathers of Confederation wanted there to be no doubt about marital status depending on where you were in Canada. So the federal Parliament has jurisdiction over the substantive law of marriage, so it’s the same no matter where you go in Canada, and there won’t be any doubt whether a marriage performed in one province is valid in another - in essence, they wanted to avoid this very issue of capacity, as much as possible within Canada, by having a uniform law of capacity. That’s a normal reason to assign something to the federal government, recognizing inter-provincial mobility of Canadian citizens and ensuring a uniform law.
Second, why should the federal government have any interest in the formalities needed to perform a marriage? There could well be local concerns there, best handled by the province. For instance, deciding who can perform marriages - a small province like PEI may have different approaches to that issue than a very large province like Quebec or Ontario, with huge ranges of land that are sparsely settled. What works in PEI may not work in northern Quebec or northern Ontario - so best to assign that issue to the provinces, so that the actual administration of marriage ceremonies is as sensitive as possible to local needs.
Type faster!! 
Dammit that makes sense.
I still don’t know what Ginette Reno has to do with any of this, though…
The news reporting about the conflict of laws issue concerning gay marriages between non-Canadians is more interesting by far than the actual rather complex and tedious legal analysis.
The problem here is that the federal lawyer made what appears to be the right analysis, but that anaylsis is based on a buncha precedents concering fairly rare cases - i.e., cases where there is a true conflict of laws between marriage formalities in the era prior to same-sex marriage being an issue. As others have explained upthread, the general rule appears to be that such matters are governed by the jurisdiction of domicile - in some cases. Not all cases. Some jurusdictions recognize foreign marriages as legitimate even if they contradict local requirements; others do not.
The problem here is not discrimination against gays. The problem here is that the government ought now to discriminate in favour of gay marriages contracted in Canada, or better yet, change the law altogether for all marriages; because the precedents do not match the reality that of all the true conflicts of law concerning marriage solemization, the only one of any real significance is this one. In short it is a neutral law that because of circumstances has a disproportionate impact.
In this case, the Conservatives have caught an unfair break. The problem is not of their making, it has always been there.