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World's First Gay Divorce
|by Naunidhi Kaur|
In September 2004, a judge of the Ontario court of appeal granted a divorce to MM and JH, making them the world's first same-sex divorcees. In accordance with a court injunction, the two women can be identified only by the initials MM and JH - the initials of their lawyers Martha McCarthy and Julie Hannaford.
MM cited "long-standing difficulties, both in our physical relationship and on several emotional levels" as the reason for divorce. "Prior to our marriage, we both knew there were problems. I have na'vely hoped that the marriage would help resolve some of the issues in our relationship," she stated in her affidavit to the court.
The couple had been living together for about seven years before they decided to get married. In June 2003 - a week after the Ontario court ruling allowing gay and lesbian marriages - the two women impulsively decided to get married. But five days after the wedding, the couple decided to separate.
"My client would say that the breath was knocked out of her when she learned the relationship was over," said Hannaford. For both partners, the break-up was painful and traumatic.
The media attention focused on the divorce made the process even more difficult. MM said, "It was important for me to be able to legally dissolve the marriage. It was a personal need, and I wasn't going to shy away from it because of the possibility of it becoming a bigger issue. But I didn't start out to launch a crusade." She stated with emphasis, "I wanted the same rights as everyone else in the heterosexual community, who entered into a marriage and made a mistake."
Stressing the significance of the case, McCarthy told reporters after the divorce that this was "not just the first gay or lesbian divorce in Canada, but the first in the world".
The judge ruled that since a higher court had previously determined that defining marriage as between one man and one woman was a violation of the country's Charter of Rights, the national divorce law also had to reflect that interpretation. Explained McCarthy, "It means that the Divorce Act, which was one of the few statutes that required some consideration after we won the freedom to marry, has now also been amended to take into account same-sex marriages."
With Ontario - the country's most populous province - making divorce of gay and lesbian couples possible, Canada has moved a step closer to consolidating gay and lesbian rights. Although Canada has come a long way since the 1960s, when homosexuality was illegal, the country has been divided on the issue of a national legislation to legalize same-sex marriages.
The Canadian Broadcast Corporation (CBC) and Ekos Research Associates conducted a survey in November 2004 to judge public attitudes towards same-sex marriages. The results were divided down the middle, with 45 per cent of the respondents from across Canada saying they supported same-sex marriages, and 47 per cent saying they did not. The rest were undecided. Predictably, a large percentage of supporters of same-sex marriages were in the 18-25 age group (59 per cent), and only 20 per cent were in the 65+ age group.
Of Canada's 10 provinces and three territories, same-sex marriages are legal only in five provinces and one territory - Ontario, British Columbia, Quebec, Manitoba, Nova Scotia and Yukon. These provinces have legalized same-sex marriages through individual court cases, in which provincial justices ruled that the ban on same-sex marriages is unconstitutional. In total, about 82 per cent of Canadians live in provinces where same-sex couples have a right to civil marriages. As a result, about 3,000 gay and lesbian marriages exist in something of an interim legal capacity.
With same-sex marriages increasingly becoming an emotive issue, political parties in Canada are trying a middle-of-the-road approach. In the June 2004 federal elections, Conservative Party politicians opposed same-sex marriages. While this found some favor with voters, it was not enough to mobilize support in an electoral contest. The Liberal Party, meanwhile, backed out of its official support for same-sex marriages.
Then Prime Minister Jean Chr'tien of the Liberal Party, unsure of support from members of his own party, referred the Bill legalizing same-sex marriages to the Supreme Court in July 2003. From October 6-8, 2004, the Supreme Court heard arguments on whether Parliament should ratify the Bill. The court will determine whether the Charter of Rights and Freedoms gives same-sex couples full marriage rights and - even more contentiously - whether religious institutions would be compelled to perform same-sex marriage ceremonies. In addition to the Attorney General of Canada, there were an unprecedented 27 interveners who appeared before the court to speak for or against the Bill.
"We are confident the Supreme Court will confirm what courts across the country have found," says Laurie Arron, Director, Advocacy of Egale Canada, an organization fighting for same-sex marriages. "Denying gays and lesbians the right to marry is outdated and wrong, just like it was wrong to not consider women as persons and to prohibit inter-racial marriages," says McCarthy, who is also representing Ontario and Quebec couples in the Supreme Court.
The Evangelical Church, however, is strongly opposing the Bill. The Church holds that legalizing same-sex marriages undermines the institution of marriage, central to which is the role of procreation. It fears that legalizing same-sex marriages will open the gates to all kinds of unconventional marriages, including polygamous (one male, two or more women), polyandrous (one woman, two or more men) and polyamorous (two or more men and women). Traditional churches are also worried that a same-sex legislation would lead to direct attack via lawsuits by gay or lesbian couples who would force them to perform marriage ceremonies they do not approve of.
The United Church of Canada, which ordains gay ministers, is not concerned. Says Anne Squire, former moderator of the United Church, "Marriage is a benchmark by which Canadian society names the everyday development of love and intimacy between a couple. Restricting the definition of marriage to opposite-sex couples questions the capacity of gays and lesbians to develop love and intimacy, undermining their human dignity and reinforcing prejudicial attitudes."
The Supreme Court is expected to file its opinion in early 2005. Given the weight of Canadian judicial opinion, which has moved in the direction of recognition of same-sex marriage rights, gay rights activists expect the court to unanimously approve gay and lesbian marriages.
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