"you're not really married," Canada tells foreign gays.

[Josephus]

http://www.theglobeandmail.com/news/politics/despite-legal-about-face-harper-has-no-intention-of-reopening-same-sex-marriage/article2299574/

In a nutshell, the Canadian government has siad that the thousands of same-sex couples who have come to Canada to get married are not legall married.

[Barrister]

To be fair that's kind of an odd position for a Canadian court to be put in.  For foreign residents, with no ties to Canada, whose marriage is not recognized in their own home country, to be asking for a divorce judgment from a Canadian court?

I think they should have stuck with "you need to be resident in Canada for one year" angle though.

[Admiral Yi]

The test case was brought by a lebiang couple that wanted to get a divorce.  If that's what they wanted, shouldn't they be just as happy if they were never in fact married? 

Am I missing something, or is this bitching for the sake of bitching?

[Malthus]

Seems to me what happened is some application of ancient conflict-of-laws rules being applied in a new "hot button" setting.

I dunno the details of the domicle requirements for determining the legitimacy of marriages generally - I'd guess this is something that, prior to the same-sex marriage business, rarely came up. However, it would not surprise me if somewhere in the relevant (probably ancient) caselaw a notion arose that a marriage is only valid if it is valid in one of the jurisdictions the person actually resides in.

So, someone asks a government lawyer what the score is, he looks up Castel on Conflicts of Law, and writes an opinion - which happens to have significant real-world application.

[Malthus]

The test case was brought by a lebiang couple that wanted to get a divorce.  If that's what they wanted, shouldn't they be just as happy if they were never in fact married? 

Am I missing something, or is this bitching for the sake of bitching?

They may be happy; those who thought they were happily married will not be.

[Barrister]

The test case was brought by a lebiang couple that wanted to get a divorce.  If that's what they wanted, shouldn't they be just as happy if they were never in fact married? 

Am I missing something, or is this bitching for the sake of bitching?

I tend to think it is the latter, but could be persuaded otherwise.

But I don't see how it makes any difference to the lesbian couple in question whether or not Canada grants them a divorce, since their marriage isn't recognized anywhere in the first place.

[HVC]

kind of like the canadian governemnt yelling "psych!". Anyway it's stupid, and i'm kind of ashamed at our about face, really.

[Neil]

Martinusism must be crushed at any cost.

[Malthus]

kind of like the canadian governemnt yelling "psych!". Anyway it's stupid, and i'm kind of ashamed at our about face, really.

I'm unsure if there has been any "about face".

More like the issue simply did not arise. When you get married here, the officials simply do not ask if the laws in your home jurisdiction(s) would make the marriage invalid. That's sort of your concern, They only want to know if it is valid here. 

The issue only arose because people in jurisdiction(s) where the marriage was invalid came back to Canada to get a divorce. Getting divorced is a more judicially-intensive process than getting married. 

[HVC]

it seems like an about face becasue when the law was passed there was a whole "come to canada and get married" theme going on. They failed to mention, oh ya, your marriage isn't really valid. our bad.

[HVC]

or maybe it's the wy it's being portrayed that's swaying me. i don't really have a dog in the fight, what with me not planniong on marrying a dude

[Malthus]

it seems like an about face becasue when the law was passed there was a whole "come to canada and get married" theme going on. They failed to mention, oh ya, your marriage isn't really valid. our bad.

I dunno if that was ever the purpose of the legislation. More like a side-effect.

Edit: I'll bet that the legal positions of different countries are different on this issue. Some places may recognize foriegn marriages as valid even if they would not  be valid if solemized in that state (I know Israel does this, as there is a whole industry of getting Israelis married on Cypris to avoid the crazy stranglehold of the religious types on "valid" marriages within Israel).

[Josephus]

I think the problem is this:

Canada's marriage laws do not have a residency requirement. But federal divorce laws do.

This CBC article tries to explain it.

http://www.cbc.ca/news/canada/thunder-bay/story/2012/01/12/pol-harper-same-sex-marriage.html

[Martinus]

The test case was brought by a lebiang couple that wanted to get a divorce.  If that's what they wanted, shouldn't they be just as happy if they were never in fact married? 

Am I missing something, or is this bitching for the sake of bitching?

You do realize that when people divorce each other, the outcome is not that they are treated as if they never were married, right? 

[Malthus]

I think the problem is this:

Canada's marriage laws do not have a residency requirement. But federal divorce laws do.

This CBC article tries to explain it.

http://www.cbc.ca/news/canada/thunder-bay/story/2012/01/12/pol-harper-same-sex-marriage.html

That's only half the issue. What is really raising hackles is the notion that for Canadian purposes, a marriage contracted in Canada between persons resident in a state that does not recognize that marriage as valid, is not valid.

This is classic conflict-of-laws stuff that confuses lawyers (including me).

For example: in some countries, a marriage contracted between certain people (say, same-sex) is not valid if it is contracted in that country, but would be considered valid if contracted elsewhere.

This is the process of legislative comity - states attempt to recognize that things under the legislation of other states are different, and attempt not to interfere.