12 January 2012

Jurisdiction Shopping…in a Teapot!

Well, what a storm can be ignited when a journalist — and then more journalists, and then bloggers, etc. — fails to understand a point of law. Yes, today was all about the evil plot of our dreaded Conservative government to nullify the marriages of all the same sex couples who have been married in Canada since such marriages became legal here. For a short period, some extra panicky people opined that the government was rethinking the law itself (going back on a promise to let it be) or even nullifying all the same sex marriages of Canadians, too.

Now, I am not one to overlook an evil Tory plot, but this is not one.

From what I hear on the radio (and we all know how thoroughly researched that must be!), the argument about the invalidity of the marriage of two women — one from Florida and one from England — was raised by one of the women's lawyers in the context of their trying to get a divorce. The problem with their getting a divorce in Canada is that one has to live for a year in the province in which one applies for the divorce before filing, and these women have never lived here and have no intention of doing so. The lawyer then called in a lawyer from the Department of Justice, presumably as an expert witness.

Let's step back from the particular case and take a little look at private international law. You can't go jurisdiction shopping to avoid the effect of the laws of the place you live. If you want to marry your first cousin in a state or a country that doesn't allow you to do that, you can't run off to somewhere that does, get married and return to live as a married couple. The place whose law you would have broken if you had conducted the ceremony within its borders will not recognize your marriage (or therefore grant you a divorce or an annulment).

If there were no legal barrier to your marriage at home, but you decided to have a "destination" wedding, you wouldn't have this problem: your marriage would be as valid at home as it was at your exotic destination. The difference between this case and our divorcing lesbians being that you would not have been running to another place to escape the narrow-mindedness of your laws at home.

The other element you need to bear in mind in these matters is the attachment of laws to the people who live in and intend to live in a particular jurisdiction. In the wild romance of getting married, few people actually consider the financial implications of their adventure. For those who do not think to draw up a marriage contract (colloquially known as a pre-nuptial agreement, but I won't go into why that is sometimes inaccurate), the laws of the place they are domiciled (living, intending to live) set out the rules of property division should the marriage unthinkably come to an end. If the two spouses come from different places, the law that will apply will be the law of the place of their first common domicile.

In Québec, we had a family law reform that now makes it impossible for someone getting married to opt out of an equitable distribution of basic family assets in the event of the dissolution of the marriage. You wouldn't be able to escape this rule by running off to Tahiti to get married: the laws of Tahiti would only apply to you if you lived there or established you first common home there with the intention to stay.

I had a law professor at McGill who had developed a certain expertise in the presumptive matrimonial regimes of Moroccan Jews (getting divorced here, but had been married there while living there, so those were the rules that applied to them). This is about the expectations and understanding one can have of the laws in the place you live, an appreciation you cannot have of an exotic destination you go to for a fantasy wedding.

So this point of law is not surprising: if you came to Canada to get married because the laws of the place you really live won't let you get married, your marriage is unlikely to be seen as valid. If you came for your wedding and liked it (and the fact that it was even possible here, as opposed to where you come from) so much that you wanted to make a home in Canada together, there would be no problem with the validity of your marriage.

It's because you tried to do an end run around your own backward laws that you find yourself in a peculiar situation of having wed, but not having your marriage recognized at home. That is an evil right wing plot, but it's one that belongs to your home state/country, not to Canada.

I prefer to blame our evil right wing government for the things it is actually doing with which I don't agree, and there is no shortage of those.

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