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Ottawa Does About-Face On Same-Sex Marriage For Non-Canadians

01/18/2012 01:30 pm ET | Updated Mar 19, 2012

Congratulations on your wedding... just kidding!

If that statement sums up the morning of Thursday, January 12, 2012, then the afternoon can be summed up by yet another 180 degree turn by the Canadian Federal Government later the same day.

The controversy began when a lesbian couple, two non-residents of Canada who wed in Toronto in 2005, were told by a government lawyer in court submissions that they could not obtain a divorce in Canada because their union was "not valid."

The government lawyer's reason? The lesbian couple "never really got married in the eyes of their home governments in Florida and the United Kingdom." In a nutshell, they can't get a divorce, because they were not legally married. Huh?

This came as quite the shock to the thousands of same sex couples who were married in Canada since 2004 -- some 15,000 couples -- many of whom came from the US and the UK. Imagine waking up to the news that the person lying next to you is not technically your spouse? That can have pretty monumental emotional and economic repercussions.

Essential Validity, Formal Validity

The government's reasoning is undeniably flawed. On top of that, it is morally reprehensible considering that Canada was willing to issue a marriage license to this couple and others like them.

The essential validity of a marriage is based on factors such as the age and consent of the parties to the union. There are additional factors, but to summarize, nobody is suggesting that any of these factors were absent from the same sex marriages in question. These factors are analyzed based on the laws where the marrying couple resides.

The formal validity of the marriage, insofar as Canadian law is concerned, is based on the jurisdiction in which the wedding ceremony takes place. Thus, if the marriage was in Ontario and it complied with Ontario law, then the marriage is valid. If neither type of validity is in question, there is no legitimate reason to suggest a marriage is invalid.

The recognition of any marriage by other countries is irrelevant to the validity of a marriage under Canadian Law.

The lesbian couple was also told that they would be required under Canadian law to live in Canada for one year before applying for a divorce. This is not a new law. This angle is more defensible from a legal perspective, but again, morally speaking it is quite perplexing and disappointing.

Later The Same Day -- A 180 Degree Turn

After facing an unstoppable firestorm of criticism on the morning of January 12, Justice Minister Rob Nicholson announced that the government has no interest in re-opening the same sex marriage debate and that the legislative branch of Parliament has made plans to amend the currently ambiguous law so that it will be sufficiently clear to ensure same sex couples who were married in Canada also have the right to obtain a divorce in Canada.

For his part, Prime Minister Stephen Harper has not taken a stance on this issue, stating that he is not aware of the details of either side of the argument and that he will be seeking more information from the relevant officials.

I'm not sure what details and information he needs, other than having someone wise enough advise him that there is, in fact, no argument. These couples had marriage ceremonies. These couples were provided with marriage licenses. Their marriages, in a nutshell, were valid. To argue otherwise for the purposes of preventing them from getting a divorce is a fool's game.