Canadian Legal Loophole Makes Same-Sex Marriages 'Meaningless'

US Gays Using Canadian Law to Challenge Home States on Traditional Marriage?

The Canadian government is currently reviewing its same-sex marriage law to ensure such nuptials involving non-Canadians are recognized, after it surfaced that a legal loophole made divorce impossible for some couples coming from countries that do not recognize such unions.

When in 2005 Canada became one of the first nations in the world to formally legalize gay marriage, same-sex couples unable to marry at home began visiting the country by the thousands to exchange vows – including many Americans.

But a recent case of two lesbians – one from Florida and the other from the United Kingdom – made it evident that the law may only be symbolic. As none of the women’s places of residency legally recognize their union, they went back to Canada to divorce. But it emerged that they could not, since neither Florida nor the U.K. recognize same-sex marriages, which means their union is not necessarily valid in Canada either. In addition, the couple failed to meet the one-year residency requirement for those married in Canada who want to divorce.

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Reportedly, thousands of other homosexual couples also face the possibility that their unions conducted in Canada are invalid. 

The government announced Friday that it plans to address those issues.

“We want to make it very clear that in our government’s view, these marriages should be valid,” a senior government official said, as quoted by The National Post, a Canadian newspaper. “That’s why 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.”

The legislative change will apply to all marriages performed in Canada regardless of the laws of the jurisdiction in which the couple live, the official reportedly said.

A change in the Canadian Civil Marriage Act is of interest to U.S. citizens, as some American same-sex couples married in that country. Last year The New York Times reported on a phenomenon of U.S. citizens migrating to Canada to enter a same-sex marriage, which is legal in the entire country, as opposed to the U.S., where it is only legal in several states. Some move there for good, the newspaper reported.

“Many same-sex couples who decide to leave the United States head for countries that recognize their unions. In fact, when we wrote a story about the extra costs same-sex couples face here in America, we learned that many leave because of immigration obstacles,” the NY Times wrote.

Some were even renouncing their American citizenship. David Cohen, a senior partner at Campbell Cohen, an immigration law firm in Montreal, told the newspaper at the time he had seen a significant increase in the number of same-sex couples who emigrated from the United States to Canada over the last 10 years.

The Christian Post contacted Cohen to comment on the proposed changes to the marriage law, but the attorney said he wants to wait for the legislators' final decision in that matter.

But some experts told CP Friday they see a mass movement of U.S. same-sex couples to Canada after the legal update as little likely.

In states where same-sex marriages are recognized, like New York, authorities will recognize a Canadian same-sex marriage with all the rights, privileges and responsibilities associated, Matt Barber, Vice President of Liberty Counsel Action, told CP Friday.

“I think that the homosexual activists lobby in the United States rather than moving across the border would more likely enter into same-sex marriages in one of the states that recognize them here now, in an attempt to use the legal system in order to force other states to recognize those marriages,” Barber said.

“I would expect to see (but I'm not aware of current data on this) that with a handful of U.S. states now allowing same-sex marriages, that almost no U.S. same-sex couples would find some advantage of going to Canada to seek such a marriage certificate,” Bruce Hausknecht, Judicial Analyst at CitizenLink, a Focus on the Family affiliate, told CP in an email.

"Either way, if their home state doesn't recognize same-sex marriage, the same-sex 'marriage' – whether performed in Canada or in a U.S. state where it is legal – carries only symbolic meaning for the parties," he added.

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