Yesterday, Canada’s Globe and Mail published a story stating that lawyers, on behalf of the Canadian Government, were set to argue that a same-sex marriage contracted between two non-residents was never a valid marriage in the first place, and thereby decline to allow a divorce.

The particular case involves two women in their thirties, who married in 2005 and now are seeking a divorce. In Canada, a divorce is only possible following 1 year’s residency in Canada, even though it is possible to marry without any residency requirements.

The couple are challenging the residency requirement in a Charter case.

The argument to be put to the court in February — by government lawyers — is that if two people marry in Canada but are ineligible to marry in their jurisdiction of residence, the marriage is invalid. If this argument succeeds, the couple will not require a divorce because they will be deemed to never have been married, along with about 5000 other non-resident couples since 2004.

“In this case, neither party had the legal capacity to marry a person of the same sex under the laws of their respective domiciles – Florida and the United Kingdom,” Mr. Gaudet stated. “As a result, their marriage is not legally valid under Canadian law.”
Federal Lawyer, Sean Gaudet, Globe and Mail

So far, the Canadian Prime Minister, Stephen Harper, has said that his goverment is not interested in reopening the debate on marriage equality and asserts he was not aware of the details of this case.

From an Irish perspective, this could have a devastating impact on the Zappone/Gilligan case if they are deemed to have never been married at all. My own marriage would also be affected.

Regardless of outcome, it’s a harsh reminder that the fight is never over. Our rights, even where they are recognised, appear to be endlessly vulnerable.

I will have another post with analysis shortly.