What you must consider as a same-sex couple who wish to marry?

In a landmark judgment, the Ontario Court of Appeal in Halpern v. Attorney General of Canada ruled that the existing common law definition of marriage was unconstitutional and had to be reformulated to include same-sex couples, effective immediately. The Federal Government decided not to appeal the decision and refer draft legislation to the Supreme Court of Canada, which the Court subsequently approved and referred back to the Federal Government to pass into law. On July 20, 2005 the Same-Sex legislation, Bill C-38, received Royal Assent making same-sex marriage legal in any Province in Canada; only the fourth country in the world to legalize same-sex marriage.

Fortunately for those same-sex couples who have married and now want a divorce, there is relief. Madam Justice Ruth Mesbur in M.M. and J.H. on September 13, 2004 granted this same-sex couple a divorce, finding the definition of "spouse" in the Divorce Act, unconstitutional. This decision has not been appealed. Recognition of same-sex divorce will certainly not be the case in those countries not recognizing same-sex marriage, let alone same-sex divorce.

You must bear in mind:

  • the Divorce Act has been amended
  • the Marriage Act has also been updated to cover same-sex marriages but:
    • while the Act explicitly prohibits a brother from marrying a sister, it is ambiguous whether a brother may marry another brother
    • the definition of "non-consummation" for the purpose of ending marriage by annulment has been clarified by the Courts
  • same-sex couples will have to deal with their previous marriages before they can remarry
  • same-sex couples will be eligible for equalization of net family property when married
  • entitlement to spousal support will arise upon marriage automatically without having to produce evidence of cohabitation
  • same-sex couples can now access certain statutory rights and benefits previously unavailable to them
    • marriage will invalidate an existing Will and lead to an automatic intestate succession
    • the special protections for matrimonial homes will now apply to same-sex married couples

Revised March 2015