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January 19, 2012:Non-Resident Lesbian and Gay Couples Can Divorce: Government

By: Josh D. Simon

In a move that same-sex divorce advocates are calling a major victory – and social conservative opponents are calling “cynical and anti-democratic” – the Canadian government has decided to rewrite the country’s divorce laws, so that non-resident same-sex marriages are valid and open to divorce.

The Canadian government’s change of direction comes amidst a brewing controversy that was spilling far beyond the country’s borders, triggered by a non-resident lesbian couple’s attempt to divorce – an attempt that was thwarted by government lawyers who claimed that the couple couldn’t divorce, since they weren’t married in the first place, given that their home jurisdictions (Florida and the UK, respectively) didn’t recognize same-sex marriage.

This dilemma, which Canada’s Minister of Justice Rob Nicholson referred to as a “legislative gap” left open by the previous government, will be solved in the coming days, once changes to the country’s Civil Marriage Act are made.

“I want to make it very clear that in our government’s view these marriages should be valid,” Nicholson told The Toronto Star. “We will change the Civil Marriage Act so that any marriages performed in Canada that aren’t recognized in the couple’s home jurisdiction will be recognized in Canada.”

Left off Nicholson’s legislative to-do list are any changes to the Divorce Act, and in particular, changes to the country’s residency requirements, which oblige non-resident married couples to live in Canada for a year before seeking a divorce in the Canadian courts.

Despite this, advocates of same sex marriage are pleased with the government’s change of plans, calling it a “good first step.”

However, they caution that changes to the Civil Marriage Act must be made retroactive, so that they aren’t discriminatory. “[The government needs] to ensure that the thousands of same-sex couples who have married since 2001 do not face the same uncertainty and anxiety in the future,” commented Helen Kennedy, the executive director of Egale Canada, a gay and lesbian rights advocacy group.

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