Same-sex divorce: in defence of comity and lex loci domicilli

DH’s response to Emmett Macfarlane’s and others’ proposal that Canadian law should override the law of domicile to permit foreign same-sex couples to divorce in Canada.

In today’s follow up to yesterday’s attempt at explaining why the recently publicized Ontario same-sex divorce case isn’t as apocalyptic as politicians and some media commentators have suggested, I will attempt to counter two thought-provoking arguments arising from this conflicts-of-laws imbroglio:

  1. If Canada’s “dual domicile” rules for recognizing the essential validity of a marriage deny the recognition of same-sex marriages in favour of international comity, those rules should be changed to reflect Canada’s position on same-sex marriage regardless of foreign law.
  2. The Charter of Rights and Freedoms should override principles of international comity to recognize same sex marriages otherwise invalid because of foreign laws. (more…)
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