Same-Sex Divorce and Conflict of Laws

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.

Yes but.

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).


  1. How can personal capacity be relevant when dealing with form?
    If the Florida state does not recognize same sex marriages, that has to do with form, not personal capacity. Personal capacity cannot mean “opposite” sex as it would invariably always be dependent upon another body, which by definition, no longer applies to one in “personal capacity”. It appears as though in this case, the couple have capacity to marry as per state law and the form is recognized in Ontario jurisdiction. Just because Florida state does not recognize marriage between same sex marriages (form), that does not mean that the couple lack personal capacity to marry. IMO, they are legally married.

  2. Rach, form and substance are indeed imprecise categories, but it’s clear that if the requirement of being the “opposite sex” of your intended partner exists in a jurisdiction’s law, it exists as a matter of capacity, of essential validity, and not as a matter of form. “Form” means to address the manner in which a marriage is “formed”—think, “signed, sealed, and delivered” when it comes to documents, or witnessed by a certain number of people. It doesn’t address the form of a person’s body or the physical formation of their union.

  3. How would the Civil Marriage Act play into this? “4. For greater certainty, a marriage is not void or voidable by reason only that the spouses are of the same sex.”

  4. I’d actually be interested in the void/voidable argument. Had been thinking about whether that’d be the easy way out.

  5. @Ali: Well, that’s the problem: I wouldn’t, under the analysis that sees capacity to marry as governed by the law of the participants’ domicile. Arguments based on the Civil Marriage Act or even, perhaps, on the Charter, would see Parliament ousting the jurisdiction of the parties’ domicile. Or, to put it another way, to have the notions of domicile and personal law as grounded in a domicile is to say you can’t forum shop for certain things: we’re going to defer to the place you rode in from.

  6. It might be helpful to look through the mirror for an example. It’s not an exact analogy, but it might be illustrative. Suppose a man visits Canada with his fiancee, who are domiciled in Nodivorstan. They get married while abroad and return home. The marriage seems to meet [Ed.: “all local requirements.” ?]Things don’t work out and on their next trip to Canada, the man wants a divorce, which is tightly limited in Nodivorstan. She has the expectation of their home country… marriage for life, as both capacity and form of the marriage are valid in her home country. Does Canada have jurisdiction to grant a divorce?

  7. But if we defer to the place you rode in from, that still raises considerable issues, particularly if individuals are domiciled in territories that recognize same-sex marriages but refuse to perform them. Consider the state of Israel. In Israel, because marriages are only performed by religious authorities, same-sex couples cannot marry and thus presumably do not have capacity. Yet Israel recognizes as valid marriages same-sex and opposite-sex marriages performed elsewhere. Would such a marriage, performed in Canada, be invalid in Canada by reason of lack of capacity, even if it were recognized by the state of Israel?

    I brought up the Civil Marriage Act because the issue of policy in the conflict of laws seems to be extremely relevant in this case. It seems to me that there is a clear expectation of equality in marriage in Canada, and that this is reflected both in the Supreme Court decisions and the relevant federal legislation. I find it very startling that Canada could take the position of deferring to foreign laws that are not just in violation of our social norms, but are actually unconstitutional.

  8. If the couple is denied a Canadian divorce on the grounds that they are not actually married in accordance with their ‘home’ jurisdiction’s laws, can we assume that their marriage is not recognized in their home state, and if so, are they free (at home) to marry opposite sex partners without fear of being accused or charged with bigamy on the grounds that they are legally married in Canada?

    Are we (Canada) not putting them into a very difficult situation, literally for the rest of their lives?

  9. @Paul If the couple is denied a Canadian divorce for the reason you give, then it would mean (and follow) that their marriage isn’t recognized there, i.e. that they are not married. They would be then free to marry whomever the law of their domicile permitted.

    I don’t know how many of the same-sex couples who married as “tourists” would be surprised to learn that their marriage isn’t (perfectly?) valid in Canada. You’d hope that if you were going to take a big step like that and do it in a foreign country, you’d get some expert advice first. But. So it’s really, in my view, Ontario and other provinces offering same-sex marriages to visitors that are to be criticized, if anyone is: the province’s licensing is the only street-level point of contact with “law” that marrying people have, and so realistically it’s only there that they can learn about the fundamentals. That said, Ontario et al. can say with some degree of truth that they have no power over essential validity, so it’s none of their business. And I’m not sure I’d want to be the one drafting the notice that had to explain how to figure out where you were domiciled.

  10. I would assume that the basic principle that you sue somebody where their assets are comes into play here.

    Would a Florida court enforce a Canadian same-sex divorce corollary relief order?

    I would think no more than a Canadian court would enforce the equivalent Iranian divorce corollary relief that included the man getting all the assets, full custody, and the wife be publicly stoned for adultery.

  11. If two Canadian citizens of the same sex happen to be ex-pats living in Florida, then, and came back to their country of citizenship to marry, the author of this post would argue that their marriage is invalid. Frankly I fail to see the logic of that, and doubt that a court of competent jurisdiction would, either.

    A Canadian marriage is valid in Canada, regardless of where the couple lives. If that were to be nullified because of the laws of another country, then–for example–a marriage between two people of different races could be ruled invalid if they had lived under apartheid in South Africa or in one of the many states that once banned “miscegenation.”

    It seems passing strange that Canadian law wouldn’t govern a Canadian institution in Canada.

  12. David Collier-Brown

    If the (federal) parliament sets the rules on capacity to marry, what then would it need to do to exclude foreign jurisdictions’ rules from rendering people incapable? Just add another line to section 4 of the Civil Marriage Act?

    -dave (a philosopher, not a lawyer) c-b

  13. @David I suppose that Parliament would only need to say explicitly that a person’s capacity to marry while in (lawfully? as a “resident”? etc.) Canada is governed by Canadian law (and not by the law of the person’s domicile, where that is outside Canada).

    It will take some thinking to determine how this might work with respect to divorce and corollary relief (custody and maintenance) and, perhaps, some property laws as well. None of this would have any impact, I imagine, on the parties’ jurisdiction of domicile, where the local law would presumably still apply as to their capacity to marry; though what might be the case with Canadian orders for, say, maintenance, I can’t say.

  14. The problem, here, as ever with law, is the assumption that a legal conclusion is valid only if it is a valid syllogism. Or, as a long dead but still famous member of the (now defunct, too) House of Lords once said “Such a mode of reasoning assumes that the law is necessarily a logical code, whereas every lawyer must acknowledge that the law is not always logical at all.”

    I like to trot this out when I’m told, by younger lawyers – or any lawyer – that going to law school taught them to “think like a lawyer”. Usually by asking, with a raised eyebrow, “oh, you mean to think illogically?”

    Once upon a time, in another online place that no longer exists, the inhabitants coined a label which seems apt to describe some forms of legal reasoning: “sillygism”. “Sillygisms” necessarily had a least four legs, thereby giving the proponent of argument at least 1 more leg to stand on when the other 3 weere knocked out from under.

  15. I wonder whether there is an error here in applying conflicts of law rules to determine the validity of a Canadian marriage. Conflicts rules are to determine the validity of a foreign marriage not a domestic one. For a marriage in Canada, Canadian domestic law, provincial and federal, applies to form , validity and capacity.

  16. It’s times like these that I regret not taking more Conflict of Laws courses in law school.

    I’ve found another analysis that comes to the same conclusion as Simon:

  17. @AJ It’s easy to let this analysis drive us round in circles. But so far as the question you asked, no, there’s no error. I should perhaps have made things clearer by simply saying that Canadian law is that the capacity to marry is determined by the law of the party’s domicile. For the vast majority of us this is transparent; we are domiciled in Canada or the legal fact of our domicile is never questioned. For litigants seeking a divorce in Canada, the law of Canada about capacity applies, and in cases like the one that sparked the fuss that directs the court’s attention to foreign law.

    It occurs to me that one way to have a court approach the “uncivilized” nature of foreign laws that fail to support same-sex marriage might be at the point where the Canadian court must determine what that foreign law is (in order to figure out whether person A had the capacity to marry); a court with chutzpah might, for example, decide that Florida’s law barring same-sex marriage is in violation of one or another provision in the US Constitution or the Florida constitution, thus “correcting” foreign law in a way that courts in that foreign jurisdiction would be unlikely to do. That would be interesting.

  18. @Paul If the couple is denied a Canadian divorce for the reason you give, then it would mean (and follow) that their marriage isn’t recognized there, i.e. that they are not married. They would be then free to marry whomever the law of their domicile permitted.

    Lesbians and gay men wishing to remarry following a divorce will, of course, seek to do so in a jurisdiction that recognizes the validity of same-sex marriage. For this reason, they will require a divorce from their marriage performed in Canada whether or not the laws of their respective domiciles recognize the validity of their marriage.

    I don’t know how many of the same-sex couples who married as “tourists” would be surprised to learn that their marriage isn’t (perfectly?) valid in Canada. You’d hope that if you were going to take a big step like that and do it in a foreign country, you’d get some expert advice first.

    One might seek such advice if one had any meaningful choice among jurisdictions. Recognize that Canada has become a haven for many couples desperate to find effective legal recognition of their union.

  19. Conflicts rules are to determine the validity of a foreign marriage not a domestic one. For a marriage in Canada, Canadian domestic law, provincial and federal, applies to form , validity and capacity.

    I would love to hear more about this, as it appears to contradict squarely the Answer filed by the DOJ in the same-sex divorce case.

  20. There is no dispute about the continuing validity of a same-sex marriage performed in Canada (since the law changed) where the spouses were domiciled in Canada at the time. If they have continued to be here, or have been resident for the last year, then there is no question about their ability to divorce under Canadian law.

    The reason for rules about domicile as a foundation for personal law is to keep people from jurisdiction-shopping for rules that may be convenient, without regard to the laws of the place to which their lives are most closely connected. One can change domicile, but it requires some serious intention to move. The laws of the place of domicile are considered in most conflict of laws situations as the most relevant to an individual.

    Without changing the law of domicile, it would certainly be easy enough for the government of Canada to permit divorces for marriages made in Canada, without insisting on twelve months’ residence. The reason for the residence rule is also to avoid forum-shopping. It would be possible but probably not necessary to provide special residency rules just for divorces of same-sex marriages, though other-sex married people might find that discriminatory… (The excuse for doing it just for same-sex marriages is that other-sex married people can get divorced in the country of their current residence, but same-sex married people may not be able to do so.)

    Since most countries make domicile the basis of personal law, including capacity to marry, even if Canada legislated to say that domicile did not count in judging capacity, that would not necessarily increase the chances of a Canadian same-sex marriage of foreign residents being valid in their country of origin.

    However, apparently some poeple at least in the US have managed to persuade employers and others to give them married benefits based on their Canadian marriage, so it is helpful to them if there is some argument that the marriage is valid here.

  21. Some parts of the mess will be easier to clear up than others.

    For two excellent reviews of the applicable law by lawyers sympathetic to same-sex marriage, see here and here.

  22. John G: Thanks for the links.

    Some parts of the mess will be easier to clear up than others.

    Political will takes us 95% of the way there.

  23. I phrased my earlier comment poorly. I was suggesting, hypothetically, that apartheid in SA persists, and anti-miscegenation laws in the US (as though Loving had not taken place).

    Let me put it less obscurely. Take a Saudi and an Israeli–a straigh5t couple. They get married here, but Saudi law will not recognize the marriage. Does the principle of comity make the Canadian marriage invalid in Canada, where citizens and non-citizens have full Charter protection?

    And to return to my other hypothetical–the two gay Canadian ex-pats in Florida. They come back to Canada, tie the knot, then return to their Florida home. Does the present law really invalidate their marriage, even though they are Canadians, marrying in Canada, having followed a Canadian procedure, and with Charter protection to boot?

    I understand the arguments for the principle of comity, but surely that principle has limits.

  24. May I put in a good word here for domicile as a connecting factor between a person and his or her capacity to marry? Some people on this blog, and the editorialist of the Globe and Mail, seem to think we should cast it aside as a ‘legal technicality’ if it gets in the way of our higher values, like non-discrimination on the basis of sexual orientation in the Charter.

    The traditional arrangement (that capacity to marry here depends on the law of the domicile of the people marrying) works for the benefit of Canadians too. Other countries apply the same rules. So people domiciled in Canada who marry here will have the validity of their marriage determined abroad by our rules.

    The first beneficiaries of this are Canadians (by which I mean people domiciled in Canada, whatever their citizenship) who have married someone of the same sex. Their marriage should be recognized when they go abroad. Not all countries will do so, but many will, even though the couple could not marry there. Many will for some reasons, such as giving medical advice in case of accident, allowing access, even allowing the sharing of a room.

    This is true for other Canadians whose marriages are valid here but not abroad. For example, Canada allows first cousins to marry; many countries do not. Canadians with first-cousin marriages can claim to be accepted as married in other countries because their capacity to marry is decided under Canadian law.

    In cases of conflict, there is a good argument that our legal system should prefer the legal interest of people domiciled in Canada to the interests of those who are just passing through. People have asked whether Canada should refuse to recognize the marriage of people who are barred from marrying in their home countries because they are of different races or religions. Is it more important for us to recognize their marriage, or for us to be able to insist that their home countries recognize the marriage of Canadians who were married in Canada despite their non-compliance with those foreign laws? It would be nice to do both, but what if we need to decide?

    If we set the traditional rule aside, why would not other countries, and judge the marriages of domiciled Canadians by their rules on capacity instead of by ours?

    A similar principle is at work with the Hague Convention on Child Abduction. The basic rule of the Convention is that custody of a child must be determined by the court and law of the place where the child is habitually resident (a test like domicile, but less encumbered with historical technicalities and questions of intention). When children habitually resident in a Convention country are brought here by a parent against a custody order from that country, or without one, Canada will return them to where they usually live, even if we are not very comfortable with the court system or the legal rules there. That is because we want to be able to get ‘our own’ kids back from those countries when they have been taken there in the same circumstances. The only chance we have of getting them back from some countries is the Convention. We have to comply so that others will. (Canada does not automatically extend the Convention to any country that wants it; some judgment is exercised about the likelihood of compliance etc.)

    The Convention allows an exception where the child is at risk of harm if returned to his or her habitual residence. Cases are fought on the exception. Likewise there may be exceptions to how the law on domicile is applied, for public policy reasons. They should be narrow, so as not to put at risk how other countries apply the principle to Canadians.

    In short, it’s like an international version of the Golden Rule: we should do unto others’ domiciliaries as we would have them do unto ours. The only ways to enforce that Rule are by treaty or by practice. In marriage and divorce, at present practice is all there is. Other countries will allow for some narrow exceptions in practice, but not for wholesale disregard.

    None of this discussion imposes a necessary solution on the question what to do with foreigners’ same-sex marriages in Canada. It may suggest a reason not to rush to the first ‘solution’ that crosses our minds.

    Even if Canada were to recognize marriages of people domiciled elsewhere for our purposes, that does not solve the other problem, that one needs to be resident here for 12 months before being able to use our courts for a divorce. That issue is completely distinct, and much more easily solved. But it should not be solved by abandoning the rule entirely for everybody, unless we want to compete with Reno as a divorce haven (and even Nevada asks for 6 weeks’ residence, or used to).

  25. For those who want some more context, here’s some technical background on domicile as a connecting factor between a person and a system of law.

    Domicile is essentially residence in a place with intention to remain there permanently. There are many complexities to the law of domicile as the courts of many countries have wrestled over a long time with the legal situation of people with extremely variable connections with more than one country. (As people have become even more mobile in the past century, challenges to a good definition of domicile have increased. Many if not all private law treaties these days refer to ‘habitual residence’ instead, to shake off some of the technicalities of domicile and look for something more capable of being shown as a matter of fact.)

    Domicile is only one possible factor that can connect a person to a system of law. The law applicable to land has traditionally been the law where the land is situated. The law applicable to movable property is more complicated because by definition such property can move from the territory of one legal system to the territory governed by another. The law applicable to business transactions is increasingly left to the choice of the parties to the transaction, and legal systems are becoming less ‘proprietary’ about commercial transactions that occur in their territory. Laws applied in order to collect tax may operate differently from laws that are more private in effect.

    In this context it makes a good deal of sense to say that someone’s ‘personal law’ – the law that decides the essential characteristics of a person for legal purposes, such as who the person is, who his or her family is, how family relations are created or changed – should be decided by the law of the place where the person usually is or to which he or she intends to return. That is what the principle of domicile aims to do. (Some legal systems apply nationality as a connecting factor for some purposes; common law countries tend not to do so.)

    An alternative would be the law of the place where the person happens to be when the legal question arises. That choice makes sense for choices that apply only during the time that the person is in that place. So if I am a Canadian driving in England, English law applies to what side of the road I have to drive on. The criminal law of the location applies; I cannot do things in a foreign country that are crimes there just because I could do them here without violating our law.

    A legal circumstance like marriage is harder to allocate. Some parts of it are connected to the place one happens to be: who can perform the ceremony? What witnesses are required if any? Some parts are permanent, however, since people carry their new marital status and new spouse back home with them when they return to their place of permanent residence. So the rules that apply when different legal systems conflict have allocated permanent factors to the permanent place, and temporary factors to the place one happens to be when they occur.

    Who can marry at all, and whom one can marry, i.e. capacity to be married to someone, has been considered a permanent factor and thus subject to the law of a person’s domicile. This makes a lot of sense, even if exceptions can be contemplated in some cases.

  26. Quaere if the law is as the English Court of Appeal stated it to be in Simonin v Mallac back in 1860- that just like other contracts, validity is to be determined by the law of celebration not the domicile of the parties. In the words of the court:

    A marriage duly solemnised in England in the manner proscribed by
    the law of England between parties of full age and capable of
    contracting according to English law is valid although the parties
    to the marriage, being Foreigners, contracted it in England in
    order to evade the laws of the country to which they belonged and
    in which they were domiciled. An English court has jurisdiction to
    adjudicate in the validity or otherwise of such a marriage.

  27. I don’t usually respond to anonymous comments — if you haven’t the courage to give your name, why should I waste time considering what you have to say? — but this one requires a comment.

    Simonin v. Mallac may have stood, in the tradition of Compton v. Bearcroft — the case that established the validity of a Gretna Green marriage — for the proposition that the formal validity of a marriage is tested solely by the lex loci celebrationis. If, however, it is to be understood as saying that that law alone is now the test of the validity of a marriage, it was overruled by the decision of the House of Lords in Brook v. Brook.

    There is, however, a much more serious aspect to the argument that the lex loci celebrationis alone determines the validity of a marriage. “Max”, whoever he or she is, would appear to accept as valid in Canada the marriage of a four-year old child, notwithstanding where her home might be — even perhaps Canada — just because she went through a ceremony of marriage in a country where such marriages are lawful.

    The plain fact is that a choice of law rule of the kind that determines whether a marriage is formally valid or not or whether the parties have the capacity to marry (or marry each other) or not, simply cannot work in all cases. Good evidence of the unworkable nature of these rules are the many exceptions to them — the texts are full of these (all unsuccessful) attempts to make them work.

    If it is offensive to Canadian values that a four-year old be held to be married in Canada, were that question asked and answered in the abstract, it does not follow — as a choice of law rule would require — that, if she in fact lived with her husband for 70 years as his wife, neither she nor anyone of her behalf challenging the marriage, that the marriage would then be treated as invalid. Of course the question would be more difficult if she were 16, 18 or 20; all that that observation proves is that there are easy and difficult questions — and why should we expect all questions to be easy, particularly questions as important as the validity of a marriage?

    If same-sex marriages are abhorrent to certain cultures, just as we might abhor the marriage of children, nothing that Canada can do will ensure that those cultures will treat the marriages celebrated here as valid. All we can do and all we can hope that other cultures will do is to recognize, if we (or they) can, the marriage that is a fait accompli in the parties’ lives.

    Playing the choice of law rules simply ignores the values — cultural values, if you like — that will trump any such rule.

  28. Max did not accept the proposition that it appears to stand for. She simply put it out for comment.

  29. I suppose what some are perplexed about is this…..

    A marriage is solemnized in Ontario and procedurally it is compliant with Ontario law. It also meets the requirements of federal law insofar as capacity is concerned, in other words, it is not like a brother and sister wanting to marry one another.

    The couple return to where they were married only to discover that when they attempt to undo what Canada permitted they are told no can do. (Of course, they also did not meet the requirement of the Divorce Act re one year residence but all who seek a divorce in Canada must meet that, and that impediment is not what we are here discussing.)

    But this is a complex area of law and in some respects uncharted waters. It will sort itself out like so many other legal issues have done over the centuries.)