It's been a great long time since I claimed any expertise in family law, but the fuss over today's Globe and Mail front page headline (see the story here) concerning the availability of divorce to foreign same-sex couples married here in Canada has tempted me to put a toe in the waters again, just to check with Slaw readers that my understanding is correct or off base.
And that understanding is the following:
The law of marriage is governed by two sets of rules, one dealing with formal validity and the other with essential validity, or capacity to marry. Just to make things wonderfully difficult, that split is mapped onto another, the Canadian constitutional division of powers, with Parliament getting capacity and the provincial assemblies getting form. Going abroad to marry adds a third duality to the analysis, because conflict of laws rules say that lex loci—the law of the place where the marriage is performed—governs the proper form of marriage, and the law of the parties' domicile governs their capacity to marry.
What then is the situation of a same-sex couple that comes from Florida, let's say, to Ontario (or any other Canadian province) in order to marry here?
First, they must meet provincial licence requirements, set out in the Marriage Act (and interpreted on the City of Toronto website, for example). This does not present a problem for the couple, and they go through the ceremony. Are they then "married"? The answer depends, at least initially, on an analysis of the various dualities outlined above. It would seem that their sex, and whether it is required to be "opposite", is a matter of personal capacity, i.e. essential validity, and hence governed by their domicile. In the simple example I'm using I've not complicated the domicile issue, and it's clear, ex hypothesi, that Florida is their domicile. Florida law does not currently permit same sex marriages. The consequence of this is that the couple is arguably not married: no amount of formal ratification can overcome an essential stumbling block.
The "logic" of this is that the couple can't be "married" here and "not married" there. And the consequence is that, not being married, they aren't able to get divorced—here, there, or anywhere. The federal Parliament has nothing to do with it; and the provincial laws and bodies are constitutionally unable to make capacity an issue, so they don't do an investigation of capacity at the time of marriage. It's caveat marrier so far as we're concerned.
What legal "buts" may there be? Perhaps a Canadian court would be willing to say that Florida law is so uncivilized that we choose not to recognize it insofar as it forbids same-sex marriages. Our courts have done similar things when shoes were on other feet, so to speak, and we were appalled by polygamous marriages from non-Western countries, declining to recognize their jurisdiction over capacity. That would be interesting indeed.
A drier approach might be to call on a fourth duality, that between marriages void ab initio and those voidable only. The argument here would be that this lack of capacity renders a marriage voidable only, with the upshot that it can only be challenged by one of the parties and is valid until successfully challenged by an annulment proceeding. The inability to consummate a marriage, i.e. lack of sexual capacity, only makes a marriage voidable, as does the lack of age and, probably, lack of mental capacity at the time of the ceremony. But I'm doubtful that this approach would have much success for a bunch of reasons I'm going to spare you.
None of this produces a good or happy result, perhaps. And it may be that a court will find a way to salvage something out of these "exilic" marriages, even if, ironically, it's only a divorce (which gives rise to corollary relief, after all).