Every Thursday, Confabulous’ resident lawyer Tannis A. Waugh discusses the most interesting legal issues emerging in popular culture and addresses your burning law-related queries. Want to contest a parking ticket? Can’t help you. Got a legal question for our in-house LLB? Drop her a line at tannis [at] confabulous [dot] ca. Note: Nothing in this column constitutes legal advice in any jurisdiction and is for information and discussion purposes only. If you have a legal problem, consult a lawyer in your jurisdiction immediately.

Q: We’ve had equal marriage in Ontario now for 6 years. What’s the fall out? Is there a fall out?

A: At the time of the Halpern decision, my law practice was geared towards LGBT clients. I was working with two family lawyers who, as a result of the requirements to obtain a marriage licence here in Ontario, would be retained by foreign visitors planning to marry in Ontario.

We saw a lot of people come through the doors who were excited about not just the ability to marry, but the fact that they were able to marry their partner in an actual legal way (as opposed to a commitment ceremony).

Q: But what happens if married same-sex couples split up?

A: The one thing that you don’t hear about all that often is same-sex divorce. Working in law and working with family lawyers, this isn’t really an issue here in Ontario for residents of Ontario. The divorce process for same-sex couples is no different than that of heterosexuals.

However, there is a legal quagmire of what happens to those who came up to Ontario to get married from jurisdictions that did not and do not allow equal marriage.

Think about it: if you live in a state or jurisdiction that doesn’t allow equal marriage and you want to get divorced, you are essentially asking the state or jurisdictional government to grant a divorce for something that’s not allowed in that state/jurisdiction.

Q: Well, why don’t they just go back to Ontario to get divorced?

A: Unfortunately, it doesn’t work that way. Family law is oriented to residency requirements in most jurisdictions, which creates rules on when and how a specific jurisdiction will recognize itself as the appropriate jurisdiction to deal with a matter.  Generally, this requires one to be habitually resident for a certain period of time. So the same-sex couple in the jurisdiction that doesn’t allow equal marriage will meet the residency requirements, but their marriage isn’t recognized and are therefore unable to divorce. Conversely, in Ontario, their marriage is recognized but they haven’t met the residency requirements to get a divorce.

In New York state, the courts have recognized the validity of Ontario marriages. In this decision, heard on appeal, the court found that because the marriage wasn’t void for being in violation of the positive law (a clear statutory prohibition on equal marriage) or wasn’t incest or polygamy, it was therefore valid. While this decision wasn’t specifically about the right to divorce, it still has applicability to that process. (Please remember that I’m not a U.S. lawyer, and I got this information from general internet research, not official legal research. If I’m wrong, please correct me).

It also appears that New Jersey is recognizing equal marriage for the express purpose of divorce.

Q: So what are the options?

• Stay married. Yeah, that’s a good one. But for those who lack the means to investigate other options, it may be what happens. Keep in mind that this creates an even bigger quagmire if one of the married couple decides he or she wants to get re-married, regardless of where that would occur. The party to re-marry may still be considered a bigamist in the jurisdiction that doesn’t allow equal marriage, and they certainly would be considered a bigamist here in Ontario.
• Launch a challenge of the divorce law.  This will cost a ridiculous amount of money and even those with significant means might not have the resources to fund this kind of litigation. There’s also no guarantee that they’d be successful.  Given that equal marriage is such a politically charged issue, getting in front of a conservative judge could mean a decision that same-sex marriage means no same-sex divorce and therefore, it’s not their problem. Also, keep in mind that allowing same-sex divorce will be seen as extremely dangerous to those who oppose same-sex marriage, due to slippery slope arguments and the inherent recognition of the marriage as a legitimate marriage, even though it wasn’t allowed in the jurisdiction in which the divorce is sought.
• Move to Ontario (or the place in which you were married originally). The Divorce Act (Canada) requires a 1-year residency immediately preceding the application for divorce but again, this is an option for those with means only.

None of these are ideal.

Let’s just hope that the rest of the world crawls out of their black hole and recognizes equal marriage everywhere so this is a moot point.

Related posts:

1. Ask a lady lawyer! This week: Equal marriage
2. Ask the lady lawyer! This week: Estate planning
3. Ask the lady lawyer! This week: The niqab in Ontario courts