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Foreign courts undoing "I do" by saying "You didn't" p. 2

We are talking about a recent decision by Canadian officials that has put at least one same-sex couple in a strange situation. The two women were married in 2005. They now want to divorce. The government says they can't.

In Illinois, civil unions are legal, but same-sex marriages are not. Even if the marriage is legal in the state where the couple exchanged vows, this state will not recognize it. If a man and a woman marry in Illinois, though, and follow the marriage laws of the state, they are more than likely able to divorce here as well.

Not so for same-sex married couples in Canada when both parties are not citizens.

Same-sex marriage has been legal in that country for several years. Couples from around the world have gone there to take advantage of the law. Now, the government has decided that same-sex marriages between foreign nationals are not valid, even if the ceremony took place years ago.

The government argues that the marriage in this case was not valid in Canada because it would not have been valid in their home countries, the U.S. (Florida) and the United Kingdom. In addition, the couple had not met the residency requirements for divorce in Canada.

If children were involved, the situation would be even more complicated. As one family law professional said, it makes sense that Canadian family courts would not have jurisdiction over families with no significant ties to the country. It makes even more sense, then, that the courts should not make decisions about children that live in a different country.

For the two women who sparked the debate, the problem is a little more straightforward: Can the government say that a marriage performed seven years ago wasn't valid, when the marriage conformed with the law at the time?

Source: Thomson Reuters News & Insight, "Canada says marriages of foreign gays invalid," David Ljunggren and Richard Woodbury, Jan. 12, 2012

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