January 13, 2012
Yesterday, the thousands of American same-sex couples who have married in Canada since 2003 woke up to some shocking news: The Canadian government had decided that all marriages of non-Canadian same-sex couples were invalid.
As details have emerged, it’s become clear that the reality is far less dramatic than early reports made it out to be.
First, let’s put to rest some misconceptions about what happened. Contrary to what some news reports have said, the Canadian government did not invalidate the marriages of the more than 5,000 non-resident couples who have married in that country. It did not secretly divorce them or pass any law that affects them. Couples who married in Canada are still married, and they have exactly the same rights and obligations today as the day they said “I do.”
Here is what actually happened. A non-Canadian couple recently filed for divorce in Toronto. In that divorce case, a single lawyer for the Canadian government filed a legal brief on Wednesday arguing that the marriages of certain non-resident same-sex couples are not valid. Specifically, the lawyer argued that if the couple’s home country would not permit them to marry, they are not eligible to marry in Canada.
It is not clear whether Prime Minister Stephen Harper or Justice Minister Rob Nicholson approved, or even knew about, the filing of this brief. The government has quickly backtracked, with Justice Minister Nicholson promising to take steps to clarify the law to make sure that non-resident couples who married in Canada may also divorce there.
More importantly, the filing of a legal brief by a government lawyer does not by itself have any legal force. In Canada, just like the United States, the courts, not the government, decide what the law is. There is every reason to believe that Canada’s courts will reject the argument being made by the government lawyer and grant this couple their Toronto divorce. In fact, it appears that no one has ever before argued that non-resident marriages are invalid during the entire eight years that same-sex couples have had the freedom to marry in Canada.
So if you are a non-Canadian couple who got married in Canada, there’s no need to panic. You are still married. There’s absolutely no reason to think your marriage will end without your consent. Not now, not ever.
At the same time, there are several steps that all U.S. same-sex couples can and should take to protect their relationships. These are steps that every couple should consider, no matter whether they are married or not, and no matter whether they married in the United States or another country.
The sad reality for U.S couples is that recognition of same-sex relationships varies widely from state to state. Even if a couple has made the ultimate commitment and gotten married in Canada or a state that offers same-sex couples the freedom to marry, their home state may still treat them as legal strangers, refusing to recognize their marriage for any reason. If you are living in one of these states (or even just traveling there), your marriage certificate may be a legally meaningless piece of paper. This can lead to tragic consequences. Imagine being denied the right to see your spouse in the hospital because the state doesn’t recognize your marriage, or losing the home you shared together on the death of a partner who is not recognized as your legal spouse.
Because even a legal marriage is often no guarantee of protection, it is essential for every same-sex couple to have legal documents to make sure that their relationship is respected. At a minimum, every couple needs wills, durable powers of attorney for healthcare (also called a “healthcare proxy”), and durable powers of attorney for financial decisions. For more information about these documents, see NCLR’s publication Lifelines: Documents to Protect You and Your Family.
Couples with children should have additional documents to make sure that their wishes concerning their children’s care and custody are respected in the event a parent dies or becomes disabled. In addition, same-sex couples who are raising children together should obtain adoptions or legal parentage decrees to ensure that both spouses are legally recognized as parents.
Finally, it may be appropriate for some same-sex couples who have already married in Canada, the U.S., or any other country to marry or register as domestic partners in their state of residence. Although many states that have comprehensive domestic partnership laws also have laws requiring out-of-state marriages of same-sex couples to be treated as domestic partnerships, in practice many people are unaware of these laws, and married same-sex couples often encounter resistance to legal recognition of their relationships.
If you run into any difficulties with recognition of your marriage or domestic partnership, or if you have more questions, please see our Legal Help & Resources section.