January 12, 2012:Lesbian Couple Cannot Divorce: Canadian Government

By Josh D. Simon

In a surprising move that is sending shockwaves across the legal landscape in Canada and abroad, thousands of non-resident same-sex couples who flocked to Canada in order to tie the knot may not be married after all.

That’s the view of Canadian government officials, who, after years of silence on the issue, are now arguing in Canadian federal court that if same-sex couples cannot be legally wed in their home country, then their Canadian marriage must also be declared null and void.

The Canadian government’s controversial position on the issue of same-sex marriage surfaced this week during a closely-followed divorce case involving a lesbian couple, who traveled to Canada in 2005 – along with thousands of other non-residents -- to marry under the country’s newly minted, and internationally celebrated same-sex marriage laws.

However, the couple, whose names are being withheld by a court-ordered publication ban, are now being told by government officials that they can’t divorce – because they were never married in the first place, given that their home jurisdictions (Florida and England, respectively) don’t recognize same-sex marriages.

“It is scandalous,” Martha McCarthy, a well-known Toronto lawyer representing the couple, told the Globe and Mail. “It is offensive to their dignity and human rights to suggest they weren’t married or that they have something that is a nullity.”

The issue, and its implications on Canada’s legal system and international reputation, is causing a stir in the country’s highest political offices, with the Prime Minister confirming vowing that he will find out why government officials changed their view.

“I will admit to you that I am unaware of the details,” Prime Minister Stephen Harper said in a news conference earlier today. “This is I gather a case before the courts where Canadian lawyers have taken a particular position based on the law … I will be asking officials to provide me more details on this particular case.”

Indeed, those details will be of immense importance not just to the women at the center of this volatile legal battle, but to the thousands of same-sex couples around the world who may wake up soon in their home countries and discover, their amazement and horror, that under Canadian law, their marriage no longer exists, and never was.

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