Editor’s note:
In this article we refer to all non-heterosexual weddings and marriages as “same sex”. We understand that gender is a spectrum and we support our trans, non-binary and gender-non-confirming community members.
The host and guest of the podcast referenced in this post use the term “LGBTQ”. We have substituted that out with the Canadian acronym, 2SLGBTQIA+, for continuity purposes.
What We Saw And Family Law:
Bad With Money – (Gay) Divorce with Alana Chazen (Podcast)
I recently listened to the (Gay) Divorce with Attorney Alana Chazan episode of Gabe Dunn’s Bad With Money podcast on the recommendation of Arielle, an assistant at Evans Family Law.
This episode features Alana Chazan, a 2SLGBTQIA+ divorce attorney based in Los Angeles, California. On the episode, Alana and Gabe talk about the laws, options, and protections around queer divorce and the complications of child custody. In my opinion, the episode did an excellent job of highlighting some of the nuances, barriers, and additional stressors and costs that 2SLGBTQIA+ folks face in the separation process.
Something that really caught my attention was their discussion about a specific California law which allows couples who are not residents of California to obtain a divorce in California if they were married there and their home state or country does not recognize their marriage. In reference to one of her cases, Alana explains:
They legally could not get divorced where they live…For Texas to give them a divorce, Texas would have to recognize their marriage, which they wouldn’t do. So, California had to pass this basically emergency statute saying – cause normally you have to live somewhere to be able to divorce there – and we still have the statute on the books that if you live somewhere that won’t divorce you, and you were married here, we’ll divorce you.
With many states in the United States and countries still not recognizing same sex marriage, this is a very important law for those married in California.
It is also a requirement in Canada that you be resident here for at least a year prior to being divorced. Same sex marriage is recognized across all provinces and territories in Canada, so this issue is not likely to come up as frequently here compared to the United States. However, it would still arise for couples who were married in Canada and never lived here, or those who were previously residents of Canada and moved out of the country.
As this is not an issue I have come across in my practice, I did some digging into whether Canada has similar legislation to California.
The Civil Marriages Act
I am happy to report that Canada does in fact have a similar protection. The Civil Marriages Act, enacted in 2005, permits the Canadian courts to grant a divorce to a couple who was married in Canada but does not reside here, if they are not able to obtain a divorce in their home state or country because their home state or country does not recognize the validity of their marriage.
Like California, the Civil Marriage Act was enacted in the interest of equality and to address the gap in the Divorce Act for non-residents. The preamble of the Act states (among other things):
WHEREAS the courts in a majority of the provinces and in one territory have recognized that the right to equality without discrimination requires that couples of the same sex and couples of the opposite sex have equal access to marriage for civil purposes;
…
WHEREAS only equal access to marriage for civil purposes would respect the right of couples of the same sex to equality without discrimination, and civil union, as an institution other than marriage, would not offer them that equal access and would violate their human dignity, in breach of the Canadian Charter of Rights and Freedoms;
The Act only deals with the legal divorce portion however, and does not allow the court to deal with other issues relating to the separation process, like parenting/custody, support, and property division issues. Alana highlights this issue in the podcast, recounting a case she worked on involving gay dads from Florida:
I could get them divorced in California, but I couldn’t get them child custody… They had to file a separate child custody case in Florida. They had to spend a zillion dollars on legal fees hiring attorneys in multiple states to work together.
While this legislation is positive, it is still necessary to apply for additional relief in the jurisdiction you reside to deal with the other legal aspects of a separation; an additional step and cost that most cis-het spouses do not face.
If you are a member of the 2SLGBTQIA+ community going through a separation, we would be happy to chat with you more about the nuances involved with queer separation and divorce. Contact us at info@evansfamilylaw.ca.
Gabe is a queer and trans writer and New York Times best-selling author. You can find the Bad With Money podcast wherever you find your podcasts.
Spotify: https://open.spotify.com/show/1MhixKASjE8kAk8d0jZxHL
Apple: https://podcasts.apple.com/ca/podcast/bad-with-money-with-gabe-dunn/id1144712710
By Rhoni Mackenzie
If you have questions about the collaborative law process, contact me today at rmackenzie@evansfamilylaw.ca.