As has been noted elsewhere, one of the biggest problems facing same-sex married couples is access to divorce, if they live in a non-recognition state. Most places don’t require residency in order to get married, but they do require some duration of residency to get divorced. There’s a long history behind this rule, called the domicile rule, having to do with preventing angry spouses from fleeing across state lines to avoid the financial burdens imposed by their state of residence. But these rules never anticipated the current situation, where a couple can be legally married in one state, but not be recognized as married in their home state.
California recently enacted a law allowing couples that married in California to come back here for a divorce, even if they live elsewhere, if their home state won’t grant them a divorce there. A similar law has been proposed in Canada, but has not yet enacted. The Canada situation raises some interesting challenges and questions about the complex situation now facing same-sex married couples.
First, the law would confirm that the marriages entered into in Canada are in fact valid, even if the couple lived in a state that didn’t allow same-sex couples to marry. This was seen as necessary by some, because a government lawyer had previously asserted that the marriages were not valid if the spouses lived in a non-recognition state. That would indeed be confusing: consider what would happen to a couple from Arizona who went to Canada to get married, and then moved to California. California would ordinarily recognize their marriage, but if it wasn’t valid in the first place, that would create a serious problem. This legislation would solve that problem.
Second, it appears that the legislation would only grant a “status” divorce, allowing the couples to dissolve their marriage, but would not be allowed to issue orders regarding child or spousal support, and probably not about financial or property claims either. This is a good thing, as it would probably not be fair to extend substantive Canadian marital law to a couple that had never lived there. But what should the couple do if they have legal conflicts over money and property? They would still be left with no court to go to. That can be a real problem for some couples, but better to have this legislation in effect than not.
Lastly, the proposed legislation imposes some rather steep thresholds in order to obtain a divorce. Unless both spouses join in the request, the petitioner is supposed to get an order from his or her local court affirming that the other spouse is unwilling or unable to join in the petition. It isn’t at all clear how a spouse would get such an order, if they live in a state that doesn’t recognize their marriage in the first place. And, a year of separation would be required before a same-sex divorce could be granted – a requirement that is not imposed on straight divorces.
No telling when or even if the Canadian parliament will pass the proposed legislation, but it’s good to hear that they are thinking about the problem. Of course, if every state in the United States started recognizing same-sex marriages, this problem would disappear. Until then, however, same-sex couples may remain “wedlocked” for some time to come.