Same-sex relationships across borders.

• Author: Bailey, Martha

The term "recognition" of marriage applies to both the status of marriage and the incidents flowing from chat status. Recent developments in the law regarding same-sex couples in both Canada and the United States have raised important questions about the recognition of same-sex relationships across borders. This article introduces some of the private international law aspects of same-sex relationships in Canada. The province of Alberta's promise to use the notwithstanding clause in order to block the federal government's proposed recognition of same-sex marriages is offered as an example of the private international law issues chat might arise.

The author also considers issues related to the recognition of cross-border same-sex civil unions, "ascribed spousal status", and contracts within relationships. She asks whether civil unions chat are distinguished from marriage under the law of their creation can be treated as marriage within the meaning of the forum law and concludes chat the answer will likely depend on the type of civil union in question given the diversity of such arrangements. "Ascribed spousal status"--the state of chose who are subject to the incidents of marriage--is deployed quite differently in different jurisdictions and therefore, the author points out, creates potential problems of forum shopping and evasion. Finally, contracts entered into by parties to a relationship may not be recognized by any jurisdiction other than the one where the contract was concluded.

The author concludes chat in light of the great diversity of approaches to the recognition of same-sex relationships, it is time for Canada to give more attention to, and to work with other countries on, cross-border issues.

La notion de > du mariage s'applique a la fois au statut du mariage lui-meme et de ses effets incidents. Des developpements juridiques recents concernant les couples de meme sexe au Canada et aux Etats-Unis ont souleve des questions importantes concernant la reconnaissance des relations de meme sexe a travers les frontieres. Cet article presente certains aspects de droit international prive (ou de >) des relations entre conjoints de meme sexe au Canada. La promesse de l'Alberta de se servir de la clause nonobstant pour empecher, dans la province, la reconnaissance des mariages entre personnes du meme sexe proposee par le gouvernement federal est un exemple d'enjeu de droit international prive qui pourrait surgir.

L'auteure examine egalement les questions liees a la reconnaissance transfrontaliere des unions civiles de meme sexe, du >, et des contrats a l'interieur de relations. Elle se demande si les unions civiles qui sont distinguees du mariage dans la juridiction de leur creation peuvent etre traitees comme des mariages selon l'acception de la loi du for. Elle conclut que la reponse dependra probablement du type d'union civile en question, etant donne la diversite de ces arrangements. Le >--a savoir l'etat de ceux qui sont assujettis aux incidents du mariage--se deploie de facons differentes selon les juridictions, ce qui, constate l'auteure, cree des problemes d'> et d'evasion. Enfin, les contrats conclus entre les parties a une relation pourraient n'etre reconnus que dans la juridiction ou ils ont ete rediges.

L'auteure conclut qu'a la lumiere de la grande diversite d'approche concernant la reconnaissance de relations entre partenaires de meme sexe, il est temps que le Canada s'attarde aux problemes transfrontaliers qui en decoulent, et collabore avec d'autres pays sur la question.

Introduction

1. Status Versus the Incidents of Status

2. Marriage

3. Civil Unions

4. "Ascribed Spousal Status"

5. Status Versus Contract

   Conclusion

   Now there can be no doubt but that marriage, which is a personal contract, when entered into according to the rites of the country where the parties are domiciled and the marriage celebrated, would be considered and treated as a perfect and complete marriage throughout the whole of Christendom. But it does not therefore follow, that, with the adoption of the marriage contract, the foreign law adopts also all the conclusions and consequences which hold good in the country where the marriage was celebrated. Birtwhistle v. Vardill, [1839] 5 E.R. 1308 at 1322 (H.L.) Introduction

   This paper is about the recognition of same-sex relationships across borders. It is important to emphasize at the outset the distinction between "recognition" in the sense of a state extending status or legal rights and obligations to same-sex couples under its domestic laws, and "recognition" in the sense of a state giving effect to status or legal rights and obligations created by a foreign law.

   In Egan v. Canada, L'Heureux-Dube J., dissenting, referred to "recognition" in the former sense:

   Official state recognition of the legitimacy and acceptance in society of a particular type of status or relationship may be of greater value and importance to those affected than any pecuniary gain flowing from that recognition.... Given the marginalized position of homosexuals in society, the metamessage that flows almost inevitably from excluding same-sex couples from such an important social institution is essentially that society considers such relationships to be less worthy of respect, concern and consideration than relationships involving members of the opposite sex. (1) Justice L'Heureux-Dube's point that failure to assimilate the status of same-sex and opposite-sex couples violates the Charter's guarantee of equality has now been accepted by courts and legislatures across Canada. (2) The issue of same-sex marriage is now before the Supreme Court of Canada pursuant to the federal government's reference to the Court for an opinion on a draft bill to open up marriage to same-sex couples. (3) If the Supreme Court of Canada affirms the constitutionality of the draft bill and the discriminatory nature of the traditional definition of marriage, and if Parliament proceeds to enact the bill to open up civil marriage to same-sex couples, the assimilation of status will be largely complete.

   The recent period of intense debate and rapid transformation of the law relating to same-sex couples has not included much consideration in Canada of cross-border issues. (4) American legal scholars, in contrast, have generated a large body of literature on the recognition of foreign same-sex relationships in the past few years. (5) And American legislators at the federal (6) and state (7) level have enacted laws on the issue over the past few years.

   The relatively hectic level of activity south of the border is partly attributable to the larger size of the country and its legal academy. Differences in the constitutional division of powers and in the choice of law rules for marriage also play a role. In the US, marriage and divorce are matters of state, rather than federal, jurisdiction (8) and each state bas its own law regarding the validity of marriage. Choice of law rules for the essential validity of marriage in the US also vary by state, but the general rule is lex loci celebrationis, rather than lex domicilii. (9) Finally, the opposition to same-sex marriage is more widespread and politically effective in the US. When legalization of same-sex marriage became a possibility in some states, tremendous attention was given to the possibility of having to recognize a same-sex marriage that took place in another state. (10)

   In Canada, there is broad support for, or at least acceptance of, extending the incidents of marriage and, now, the status of marriage to same-sex couples. The federal government has exclusive legislative jurisdiction over the essential validity of marriage, and so marriage recognition across provinces is not a major issue. (11) But the recognition of truly foreign same-sex marriages and of sister province and truly foreign civil unions or incidents flowing from cohabitation or contract is an important and difficult issue that requires some attention. The aim of this paper is to introduce some of the problems and to generate further consideration of the private international law aspects of same-sex relationships in Canada.

1. Status Versus the Incidents of Status

   Marriage confers both spousal status and the incidents of marriage. R.H. Graveson defined status as

   a special condition of a continuous and institutional nature, differing from the legal position of the normal person, which is conferred by law and not purely by the act of the parties, whenever a person occupies a position of which the creation, continuance or relinquishment and the incidents are a matter of sufficient social or public concern. (12) The "incidents" are the "special rights, duties, privileges or incapacities" (13) that flow from the status of marriage and include, for example, charges of bigamy, (14) the lack of capacity of parties to valid, subsisting marriages to marry (15) again, and the requirement that a person be married in order to obtain a divorce. (16)

   Marital status is governed by a party's "personal law", which in Canada is the law of a party's domicile. (17) The rules governing capacity to marry vary from jurisdiction to jurisdiction, but the principle of "universality" is generally applied to status, that is, a status validly acquired under a party's personal law will be recognized everywhere. (18) It is theoretically possible to refuse recognition to a foreign marriage on the grounds of public policy, but this discretion is rarely exercised. (19) If the parties had capacity to marry under their personal law, the marriage will usually be recognized in Canada, even if such a marriage would not have been permitted in Canada. Legal incidents flowing from marital status under Canadian law will apply to foreign marriages for any matters governed by Canadian law. Thus, for example, a party to a foreign marriage could be charged with bigamy for going through a form of marriage with a third party in Canada; would be denied a...