The Same Sex Divorce Quandary – Updated!

On a global level, the law regarding same sex marriage seems to be changing every day.  Here in Washington, where”everything but marriage” domestic partnerships have been in effect since 2007,  the state legislature appears to be on the verge of making same sex marriage legal.  And of course, there are six other states in the United States, as well as the entire country of Canada, which already permit same sex couples to marry.

Cue happy same sex couples in less progressive states and countries planning destination wedding in places like Windsor, Ontario and Boston, Massachusetts.

But what happens to these folks if or when the marriage proves to be a failure and they want a divorce? That has proven to be rather tricky.  Two recent news stories out of Canada highlight the conundrum faced by same sex couples who want to legally end their relationship.

The stories concern two different couples who traveled to Canada to get married.  One couple has since split up, with one spouse living in Florida and the other living in the United Kingdom.  The other couple resides in Michigan.  Neither couple is able to obtain a divorce in their home states because those states don’t recognize same sex marriages, and therefore will not grant a divorce.

However, Canada courts will not grant divorces to folks who haven’t lived in Canada for at least a year.  The Florida couple is currently fighting this requirement, arguing it’s unconstitutional.  A lawyer for the Canadian government has further muddied the waters by filing a motion which alleges that the marriage isn’t valid in the first place because the spouses weren’t Canadian residents when they married, and because their marriage isn’t recognized where they truly reside.

The case involving the Florida couple is expected to resolve in February, and the ruling will surely clarify the rights of non-residents to divorce in the jurisdiction where they married.  However, given the ever-changing state of the law across the U.S., in Canada, and beyond, it’s clear that, while it’s getting easier for same sex couples to marry, trying to get divorced may be a a Kafkaesque experience.

You can read the full stories about this issue on the CBC ‘s website.

Update – In response to international outrage regarding the Canadian government’s apparent stance on the martial status of non-residents, the government announced their intent to close the “legislative gap” that made it difficult (if not impossible) for non-Canadians to obtain a divorce in Canada:

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… This of course will apply to all marriages performed in Canada.”

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