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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Same-sex divorce case legally straightforward, politically exploited

DH examines the legal issues surrounding Canada’s opposition to a lesbian couple’s divorce application and concludes that perhaps Harper isn’t out to destroy same-sex couples after all.

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. (more…)

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