Emigrating Same-Sex Civil Partnerships: Should They Be Considered Marriages?

Recently, a website devoted to advocacy for same-sex relationships and rights published a post about a gay couple attempting to divorce in Canada. The couple became civil partners in the United Kingdom, then emigrated to Canada. Their relationship broke down and spousal abuse has been alleged:

Will is a Canadian citizen who decided to move to the UK. He enjoyed his life and, by chance, while living there, met Chris, another Canadian, who had come to the UK as well. They fell in love and had a Civil Partnership Ceremony in the UK. They later decided to return to Canada and settle down. They purchased a home, furnished it together, and lived the married life. Unfortunately, their relationship took a turn for the worse when Will became the victim of spousal abuse and his partner, Chris, was arrested. Upon release, Chris returned home, changed the locks, and threw Will out onto the street with only the clothes on his back. All Will's possessions were in the home, but he was not allowed to get them. Fortunately for Will, he had family a short distance away, who took him in while he tried to sort this mess out.

Will decided that the only way to get back his possessions was to try to file for a divorce here, in Canada. Upon filing, he received a letter from his partner's lawyer, stating that their Civil Union was not recognized in Canada, and that Will had no rights to any of the possessions in the home. Will was devastated but thought that he could find something that would say he had the rights of a spouse. He wrote to officials in the UK and to government officials in Canada. Unfortunately, everywhere he turned, he came upon a brick wall. No one had an answer for him. He found documentation that a Canadian Gay marriage is recognized in the UK, but he found nothing stating that Canada recognized a Civil Union from the UK.

The article goes on to state that "Will" (a pseudonym) will be going to court this month in order to assert his right to a divorce.

This is new legal ground in Canada and there appears to be no caselaw stating what the proper procedure would be in this scenario, making it novel.

The Same-Sex Marriage Reference produced by the Supreme Court in 2004 explicitly divides marriage and civil unions by calling them "distinct ways in which couples can express their commitment and structure their legal obligations," and that civil unions are a "relationship short of marriage." This reading would seem to indicate that it is therefore incumbent upon couples such as Will and his partner, when emigrating to Canada, to marry once they are within the country, as civil unions and marriages are two distinct types of relationships, each with its own set of special privileges.

However, that argument sacrifices human truths for technical correctness. If a same-sex couple in a country that does not allow for same-sex marriage elects to be joined in a civil union, for all practical intents and purposes they are likely doing so because they cannot be married and seek the closest possible alternative, rather than because they want the specific set of legal obligations that come with civil partnership (as opposed to the marriage they cannot obtain).

Many gay couples who elect to enter into civil unions where they cannot be married (and, one could argue, the overwhelming majority thereof) still consider themselves to be married in spirit if not in law.

This is particularly true with respect to civil unions in the United Kingdom, where the Civil Partnership Act of 2004 granted civil unions rights and responsibilities largely equivalent to those of marriages: civil partnerships in England and Wales mirror marriages in England and Wales, and civil partnerships in Scotland mirror marriages in Scotland. (Civil partnerships in England and Wales differ somewhat as compared to as in Scotland, but that has more to do with differences in their respective family law regimes.)

However, not all same-sex civil partnership regimes are like the United Kingdom's. Switzerland's, for example, forbids same-sex civil partners from adopting children or sharing a surname, as does Hungary's; the Czech Republic, in addition to forbidding civil partners adoption rights, does not recognize their right to a widow's pension or as having joint property rights. On the other hand, civil partnership regimes in Germany and Finland are fundamentally equivalent to marriage, as in the UK.

(Special note must be taken of the United States, where civil unions are left to individual states - as the federal government does not recognize marriage - and thus there are a large number of widely differing regimes, from Massachusetts' full recognition of gay marriage to domestic partnerships in Wisconsin which enumerate only some rights.)

The idea, then, that gay couples in civil unions emigrating to Canada should be treated as not being married seems obtuse to the realities of the situation. Depending on the regime under which they were joined, same-sex partners will have either previously had all of the rights equivalent to traditionally married couples, in which case the distinction between civil partnership and marriage is essentially a fiction to placate those not comfortable with the concept of extending marriage rights to same-sex couples, or they will never have had the opportunities to those rights in the first place.

Requiring gay partners to marry a second time while in Canada seems an unnecessary burden for those couples to undertake, particularly considering that at present there is no legal requirement to have a foreign marriage registered in Canada for it to be recognized. Regardless of the fact that the Canadian government did not itself force foreign same-sex couples to enter into civil unions rather than marriages, it seems strikingly unfair that we should require emigrating gay couples to jump through additional hoops when the likelihood of their preference for marriage over a limited domestic contract with few enumerated rights is likely.

Consider that when the state of Massachusetts overturned prohibitions against same-sex marriage in 2004, over six thousand same-sex couples married within the first year and that over half of them had been common-law partners for a decade prior. Forty percent had children. The choice of marriage for these couples despite the availability of civil partnerships in the New England area makes a strong case that, like straight couples, committed gay couples will overwhelmingly choose marriage to certify their commitment when it is available.

(Additionally, Quebec's experiment with both marriage and civil partnership regimes for same-sex couples would seem to bear this out: once same-sex marriage became available to gay couples in Quebec in 2004 as a result of the Civil Marriage Act's passing, the use of civil unions by gay couples cratered in comparison to entry into marriages.)

This writer would urge whatever judge is hearing "Will's" case to recognize same-sex civil unions entered into within other countries as marriages. Given that civil unions are essentially obsolete within most of Canada, having been largely superceded by marriage where they were previously in use, the spirit of fairness demands that we recognize that emigrating civil partnerships are almost certainly only those things because they could not get properly married.

True, there may be the occasional instance of a couple choosing a civil union rather than a marriage, but this writer firmly believes they will be extremely occasional given the wide berth between marriage and civil partnership in most countries in terms of rights and privileges, and their potential existence does not present enough reason to complicate the lives of emigrating gay couples who believe - and understandably so - that Canada will validate and recognize their desire to be married.

- Christopher Bird, Toronto

Addendum:

To some extent, I differ on this point.

I am not sure it is accurate to assume in all cases that partners have specific marriage-like intentions when opting for civil union.

The leap to full marital property rights may be more than either party bargained for.

Certainly, it would be a mistake to extend entitlements - and obligations - to partners that they would not enjoy even in the jurisdictions of their civil unions - and which would exceed the entitlements of common law spouses, same sex or otherwise, in Canada.

If a blanket rule of recognition of civil unions as marriage is employed, as Chris suggests, how would one distinguish between jurisdictions such as Massachusetts, where civil union and formal marriage are both available same-sex options - yielding wholly different property regimes - and other states where gay marriage is not yet legalized and civil union is the only option?

It would be prudent, however, for our courts to enquire as to the nature of property rights acquired in the actual jurisdiction of the parties’ civil union and to consider whether those entitlements and obligations ought to be applicable in Canada – perhaps on an implied contract basis.

Beyond that, it is unclear why "Will" need to assert these broader "marital rights" to secure his own belongings (and one-half of the joint assets) along with his interest in the family home – Ontario's common law spouses regularly secure such relief via civil actions and family law applications, alleging constructive or resulting trusts or entitlement to replevin.

Frankly, I think Will needs to speak with a lawyer, not a journalist.

The determination of a mechanism in Canada for dissolving marriage-like unions entered into elsewhere does indeed pose an interesting challenge, however. Our courts and legislators will need to address this current legal status vacuum. It does not follow, however, that the extension of property rights to civil union partners must necessarily be part of such a law reform package.

Worthy of additional note, perhaps, is that the trust entitlements of common law spouses were recently clarified and extended by the Supreme Court of Canada in its February 18, 2011 decision in Kerr v. Baranow, 2011 SCC 10.

- Garry J. Wise, Toronto

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