The federal government has reversed its policy on same-sex couples who were married in Canada but do not live here, the Globe and Mail reported today.*

In a nutshell, the federal government now takes the position that non-resident applicants have not met the residency requirement necessary to obtain a divorce from the court.

Plus, those for whom same-sex marriage was not legal in their domicile (i.e., where they usually live) did not have the capacity to enter into a same-sex marriage in Canada.

In my humble opinion, the one year residency rule is no surprise. Canadian lawyers who are familiar with family law should not be appalled. It has been the requirement for obtaining a divorce for decades.

However, by raising the the issue of an applicant’s domicile, in my opinion, the federal government is attempting to undo the progress made in the Canadian legal system in recent years.

Legal domicile has become less relevant in modern times. The idea of domicile is that the law governing a person should be that of where the person usually lives.

However, with the advancement of globalization, the idea that a person is tied to his or her primary residence creates questions in law regarding which law is applicable. For example, a worker may work in one country and nonetheless continue domiciles in another. Or a student may go on exchange in a foreign country but still retain domicile in another. Therefore, many countries (including Canada) have moved toward territorial jurisdictions, that is, the local law is applicable if you are physically present in a court’s jurisdiction for both civil and criminal purposes.

Let’s see how this will play out in court.

* Kirk Makin, “Despite legal about-face, Harper has ‘no intention’ of reopening gay marriage,” The Globe and Mail (12 January 2012) A1

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