The recent outcry over Canada’s position opposing a divorce application by a same-sex couple is, while perhaps unsurprising, simply astounding from a legal perspective. Unfortunately, it seems the nuances of private international law have been overlooked as politicians (including interim Liberal leader Bob Rae – a trained lawyer!) rush to pounce on the opportunity to characterize this as a deliberate attempt by the Harper government to re-open the debate on the legality of same-sex marriages in Canada.

At the risk of betraying our political leanings, we at DoubleHearsay aren’t thrilled about having the Conservatives running a majority government. And we strongly support same-sex marriage, the full blown version rather than some watered down “civil union” consolation prize. Having considered the DOJ’s position and the existing laws regarding the recognition and enforcement of foreign marriages, however, we believe the current criticism leveled against the federal government to be entirely misplaced.

First, a bit of background to the divorce application itself. It is brought on behalf of an unidentified lesbian couple who married in 2005 and separated in 2009. Neither partner has ever lived in Canada. They are residents of Florida and the United Kingdom. They came to Ontario in 2005 to get married, presumably because as a same-sex couple they weren’t legally entitled to marry each other in their home jurisdictions.

To state the obvious, each state is free to set its own legal requirements for the validity of a marriage. These requirements can be broken down into two categories: essential validity requirements (e.g., who is entitled to marry whom) and formal validity requirements (e.g., what constitutes a legal marriage ceremony).

In Ontario, being a member of a same-sex couple is not a bar to the essential validity of one’s marriage. In Florida and the UK, it is. (Another example of a marriage that would be invalid based on essential validity rules is an incestuous relationship prohibited by the Marriage (Prohibited Degrees) Act, the law that says you can’t marry your sister or your grandmother.)

So if different states have different rules for what counts as a valid marriage, what happens to married couples seeking to have their marriages “recognized” in a foreign state? The answer to this is brought to you by private international law, which sets rules for when to defer to other countries’ marriage laws and when to dig in and apply one’s own laws.

In Canada, the general rule is that the formal validity of a marriage is determined by the law of the country in which the marriage took place (lex loci celebrationis). The rules for determining the essential validity of a marriage are a bit more complicated. The traditional rule in Canada is that, in order for a marriage to be essentially valid, each spouse must have been entitled to marry the other according to the law of each party’s country of residence before the marriage took place (the “dual domicile” approach to the lex loci domicilli rule).

Under the dual domicile rule, even though the formal validity of the unidentified lesbian couple’s marriage may not be in issue (given that they were married in Ontario, presumably according to the ceremonial requirements of Ontario), there can be no doubt that their marriage was “essentially” invalid based on the laws of their places of residence, namely Florida and the UK, since neither of those jurisdictions permit legal marriages between same-sex partners.

This is precisely what Sean Gaudet, counsel for the Attorney General of Canada, argued before the Ontario court where the lesbian couple had sought a divorce. That is, as a matter of Canadian law, the couple is not validly married in Canada and never had been.

To be clear, if the couple had been residents of Canada before they were married, the validity of their marriage would not be an issue. So the criticism that Canada is somehow changing its position on the validity of same-sex marriages is quite misplaced. The problem in this case isn’t Canada’s law on same-sex marriages; it’s the UK’s and Florida’s prohibition on same-sex marriages and the fact that this couple resided in those two jurisdictions before getting married in Canada.

In order to provide a “fix” to the current situation, Canada would actually have to change its private international law rules for the recognition of foreign marriages to something closer to “the law of Canada no matter what”. In the world of private international law, that kind of xenophobic approach offends the principles of international comity and is generally frowned upon. After all, it’s in Canadians’ interests to have other countries recognize Canadian law in certain circumstances, and for that to happen each country has to be seen as reasonable in its approach to private international law.

In addition to the “dual domicile” approach to the lex loci domicilli rule, there’s also a rarely applied approach that recognizes the law of the “intended matrimonial home” as governing the essential validity of a marriage, in cases where the intended location is different from where the couple actually resided before the marriage. By rarely applied, we note that Canadian courts have cautioned that this innovative approach would apply only in exceptional circumstances. In the case of the Florida/UK lesbian couple, this alternative approach wouldn’t be very helpful; there’s no evidence that either of them ever intended on staying in Canada after getting married.

The couple is also claiming that Ontario negligently misrepresented that the couple’s marriage in that province was legally valid. We have no idea what the couple were told when they applied for their marriage licences, but there’s little doubt that the domestic recognition of same-sex marriages in Canada spawned a lucrative wedding tourism industry at the expense of foreign same-sex couples looking to get hitched. Could more have been done to warn these foreign couples that there was no guarantee that their marriage would be recognized at home (much less in Canada, given its application of the lex loci domicilli rule)? Possibly. But at the risk of appearing unsympathetic, it seems to us that any couple that jet sets to a foreign country to take advantage of more favourable marriage laws knows that they’re on questionable legal footing as far as their marriage is concerned.

If this couple gets anywhere with their negligent misrepresentation claim, you can bet Las Vegas chapels will be doubling up on the waivers we imagine they get foreign couples to sign before tying the knot before their favourite Elvis impersonator.

UPDATE: For more discussion of comity and why it’s a good thing, click here. For a contrary view, see Macfarlane’s post in Macleans here.