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

[Martinus]

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.

Homosexuality is not something you can "contract". It's not a disease. 

[crazy canuck]

Yep, this is just a conflicts of laws case.  But I suppose the media must be ever vigilant to sniff out that evil hidden agenda thing...

[Valmy]

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

That is not what he was saying.  He was saying that if you are getting divorced maybe it would be fine with you if you were never married.

[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?

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

But that's only true when people live in a jurisdiction that recognized their marriage in the first place.

[crazy canuck]

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

That is not what he was saying.  He was saying that if you are getting divorced maybe it would be fine with you if you were never married.

I suspect that at least one of them cares very much as the division of assets might be a big issue and that is often the reason why the question of what law applies is raised.

[Admiral Yi]

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

Assuming for the sake of argument that both of the lebiangs wanted the divorce, and neither was contesting any property, income, or custody, what's the difference?

[Malthus]

Homosexuality is not something you can "contract". It's not a disease. 

It is marriage that is "contracted". As to whether marriage is a disease or not, I'll remain prudently silent. 

[crazy canuck]

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

Assuming for the sake of argument that both of the lebiangs wanted the divorce, and neither was contesting any property, income, or custody, what's the difference?

Making all those assumptions, there is still an open question as to whether the marriage is valid in another jurisdiction.  For finality they still might want a court to rule on the issue.

[Martinus]

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

Assuming for the sake of argument that both of the lebiangs wanted the divorce, and neither was contesting any property, income, or custody, what's the difference?

Even assuming that the second part of your assumption is correct (doubtful), I guess there may be tax consequences.

[Valmy]

I suspect that at least one of them cares very much as the division of assets might be a big issue and that is often the reason why the question of what law applies is raised.

That is why I said 'maybe' also I was saying that Yi was not saying that those two states are equivalent, only that perhaps if you were getting divorced you would be ok with that set of affairs.

But a Canadian court has no jurisdiction over non-citizen's property located abroad so it couldn't be anything more than a suggested division of property right?

[Valmy]

Even assuming that the second part of your assumption is correct (doubtful), I guess there may be tax consequences.

Do they own any assets or make any money in Canada?  Then how would there be tax consequences?  What sort of ruling could a Canadian court make here that would be of any significance?

[Barrister]

I suspect that at least one of them cares very much as the division of assets might be a big issue and that is often the reason why the question of what law applies is raised.

That is why I said 'maybe' also I was saying that Yi was not saying that those two states are equivalent, only that perhaps if you were getting divorced you would be ok with that set of affairs.

But a Canadian court has no jurisdiction over non-citizen's property located abroad so it couldn't be anything more than a suggested division of property right?

Well not quite - if a Canadian court held that they ahd jurisdiction to make a divorce judgment, then they say they have jurisdiction.

The trouble would be trying to convince a foreign court to actually enforce that judgment, which I'm pretty sure they would decline to do so.

I could well be wrong though - as Malthus keeps pointing out, conflict of laws questions are ones notoriously tricky even for lawyers to get right.

[Admiral Yi]

Even assuming that the second part of your assumption is correct (doubtful)

I thought it was a reasonable assumption based on the fact that there's one lawyer representing both of them.

[crazy canuck]

But a Canadian court has no jurisdiction over non-citizen's property located abroad so it couldn't be anything more than a suggested division of property right?

Boldly stated but may not be correct in all cases.  That is the very reason we have the Law of Conflicts to sort out such questions - and indeed that issue appears to be at the heart of this case.

[Malthus]

I suspect that at least one of them cares very much as the division of assets might be a big issue and that is often the reason why the question of what law applies is raised.

That is why I said 'maybe' also I was saying that Yi was not saying that those two states are equivalent, only that perhaps if you were getting divorced you would be ok with that set of affairs.

But a Canadian court has no jurisdiction over non-citizen's property located abroad so it couldn't be anything more than a suggested division of property right?

Depends on whether a Canadian judicial decision on the matter would be "recognized and enforced" by a court in the place where they reside. Which is a whole 'nother song and dance. Such as: does the fact that they chose to get married here create a "real and substantial connection" with this jurisdiction, such that a court in the other ought to recognize the decision as binding by virtue of judicial comity? (Or some equivalent reasoning in the state in which enforcement is sought?)

Isn't conflict of laws fun?