Toronto
5 min

Divorce homo-style

Will we run to the courts when we split up?

First comes love, then comes marriage (or so we are led to believe). And then comes a constitutional challenge to the Divorce Act – if you’re MM and JH, the Toronto lesbian couple who married one week after the Ontario Court Of Appeal legalized same-sex marriage last summer.



The couple had been together for five years before they tied the knot, but they separated just a few days later and now want to go their separate ways.



Easier said than done. Because the federal Divorce Act doesn’t contemplate same-sex marriage, it doesn’t accommodate our divorce. According to the act, a spouse is defined as “a man or woman who are married to each other.” MM and JH have asked the court to drop the phrase “to each other” from the definition. (To protect the couple’s privacy, only the initials of their lawyers, Martha McCarthy and Julie Hannaford, are being used.)



The case will heard on Mon, Sep 13. The women’s lawyers will jointly argue that the law’s definition of spouse violates the couples’ equality rights under the Charter.



So what’s interesting about gay divorce? From a legal perspective, not much. The gay divorce issue is a no-brainer. It is true that without an amendment to the law, same-sex couples will be stuck in a legal limbo, where they are entitled to marry in three provinces and one territory, but not divorce.



Yet there is little doubt that the court will rule that the right to marry includes the attendant right to divorce. This is not just because the family law judge in question, Justice Ruth Mesbur, has a reputation for getting it right. It is also because the government has already conceded the point, by admitting that the definition of spouse in the divorce legislation is unconstitutional.



Same-sex divorce isn’t earth-shattering from a political perspective either. The federal Liberals have been predictably inconsistent in their response to MM and JH’s constitutional challenge. In fact, the only thing consistent about the government’s actions since they jumped on the same-sex marriage bandwagon has been their lukewarm approach to the issue.



MM and JH are trapped in a marriage they can’t escape because, in the wake of court decisions legalizing same-sex marriage, the feds failed to take immediate steps to change the laws. After promising its legalization nationwide, former prime minister Jean Chr├ętien referred the issue to the Supreme Court. Prime Minister Paul Martin’s subsequent decision to change the terms of that reference had the convenient effect of delaying the hearing until after June’s election. The reference is now scheduled to be heard in October.



Even though the government already admitted defeat in this case, it had the chutzpah to ask the judge to put off the couple’s divorce until after the reference. Justice delayed is justice denied, and Mesbur rightly refused the government’s request to postpone the hearing.



To add insult to injury, the government then asked the court to give notice of the hearing to outside interests like the right-wing Christian group Focus On The Family. These organizations already have intervener status for the Supreme Court reference. For some bizarre reason, the government believes they should also be given the opportunity to defend the Divorce Act at MM and JH’s hearing.



Essentially, the government is in one breath conceding that one of its laws is offensive to the Constitution and in the next breath inviting the religious right into the courtroom to defend what it admits is indefensible. This kind of waffling is without precedent. McCarthy, who represents the civil litigants in the battle for same-sex marriage and who was lead counsel for M in the groundbreaking case, M versus H, refers to the government’s conduct as “baffling.”



The reaction from the religious right to MM and JH’s failed marriage has been as predictable as the government’s ambivalent support for the couple. The “we-told-you-so” crowd is gleefully pointing to the five-day marriage as proof that lesbian and gay relationships are less stable than straight ones, and therefore reason to deny us equal marriage.



What is regrettable is not that MM and JH are poor spokespeople for the cause, but that same-sex marriage advocates seem to be taking this argument seriously. Leaders of gay organizations have taken pains to point out just how stable gay relationships are. Egale Canada’s director, Gilles Marchil-don, was quoted as saying that “out of the 3,000 or so marriages that have taken place in Canada, we have one divorce so far, whereas the rate of divorce between heterosexual couples is between 30 and 40 percent.”



Comparing the divorce rate of straights and queers at this point in the evolution of same-sex marriage is not only statistically unsound, it is conceptually unwise. Although many of us have experienced the urge to fight rightwing homophobia by proving how “good” we are, this kind of logic does not serve us in the long run.



It is true that MM and JH were together five years before their five-day marriage, but would they be any less deserving of equal rights if they had only known each other for five minutes before they tied the knot?



Charter rights aren’t contingent on being good gay men and lesbians. The right to participate equally and fully in our society includes the right to make rash and even stupid decisions about our lives – Britney Spears, anyone?



What is most fascinating about same-sex divorce is how it might change the way we handle our breakups.



Before marriage became an option, gay and lesbian couples had the same rights and obligations under the law as common-law heterosexual couples, including the right to seek custody, child support, spousal support and limited property rights. Yet despite these rights, anecdotal evidence suggests that gay couples were less likely to vindicate their legal rights upon the breakdown of their relationships than straight couples.



In other words, we were more inclined to leave our relationships without getting into the messy details of what we were entitled to.



My guess is that as allowing the state into our relationships through marriage becomes more common more and more queer people will seek the protection of the state when our relationships end.



It’s easy to be cynical about this. Do we really want the government regulating our private lives, particularly a government that refused to acknowledge the dignity of our relationships until it was strong-armed into doing so by the courts?



But there is a significant up-shot to the state having a say in our breakups. The fact is, even in the most egalitarian, modern relationships, one partner is often more financially vulnerable than the other. The philosophy of the Divorce Act is that marriage is an equal partnership. The contributions of both spouses, whether financial or domestic in nature, are equally valuable. This feminist approach to what has traditionally been considered “women’s work” was adopted by the government to ensure that the parties would share both the advantages and the disadvantages of the relationship equally.



If the right to marry and divorce creates a culture in our community where obligations to vulnerable spouses are recognized, same-sex marriage advocates will have accomplished even more than they bargained for.



* Until recently, Nikki Gershbain practised family law at the firm that represents the civil litigants in one of the gay marriage cases.