Same-sex marriages of non-resident couples not legal: federal justice department [Toronto Star]

[tuvor]

The Harper government is being accused of taking away same sex rights by “stealth” in light of a surprise government decision stating non-resident gay and lesbian couples who flocked to Canada to exchange vows really aren’t legally married after all.

“The narrow interpretation of the law shows that the Harper government is trying to take away same sex rights by stealth, and Canadians need to know that the advances we thought were secure are now under threat from the Harper neo-conservatives,” Interim Liberal Leader Bob Rae told the Star Thursday.

According to news reports, thousands of same-sex marriages since 2004 involving couples from outside Canada are in limbo as result of a new position taken by the Conservative government. In a nutshell, government lawyers are arguing in court that if same-sex couples could not be legally married in their home country, then their Canadian wedding is not valid.

The revelation came when a lesbian couple — one from Florida and the other from the United Kingdom — married in 2005 filed for divorce in Toronto but was told by a Department of Justice lawyer that their marriage was not legal in Canada.

...

http://www.thestar.com/news/canada/politics/article/1114430--same-sex-marriages-of-non-resident-couples-not-legal-federal-justice-department

[Bragi]

1. Canada is in deep trouble

Our PM is a fascist, our media are overwhelmingly right wing, our reporters are brain dead, the CBC has been muted by threatened cuts, we are in trouble.

Please note that the Canada you knew and we knew is not the Canada of Stephen Harper.

We are now run by an anti-environment, right wing government that is basically beholden to the Alberta-Texas oil industry and related libertarians.

It will take generations to undo what Harper is doing. He runs the place now with an iron fist, despite the fact that 61 per cent of voters voted for non-right wing parties.

[MedicalAdmin]

20. 2 words.

General strike.

[KamaAina]

35. I guess you really are "America, Jr." after all

[Betty88]

2. Oh for the love of god

So am I married or not??? Jumptheshadow and I went to Canada 5 years ago for our wedding, now this year we were just trying to figure out how to file our NY state income taxes...

Who the hell do you call to figure this out?

[Ms. Toad]

4. I think we're safe for now -

On a quick read - it doesn't appear to be a court decision, or a statute, but a government lawyer's interpretation of the law.

I believe the system there is similar to here, in which there are advocates for both sides who argue the case which may ultimately be decided by a court.

I'll post more if I find out otherwise - but I got different Canadian law to research at the moment.

[Betty88]

6. Guess we will just have to keep an eye on this

We have been looking for an accountant to do our gay taxes this year, its already a bit complicated between the fed and state. Now add this little bit of news to the mix and tax time will be a total bitch.

Oh well off to City Hall I guess to make sure its official, Jump guess what I want for my birthday LOL

[Ms. Toad]

8. Oh yeah - quite complex.

City Hall may actually make matters worse, since you can't marry if you are already married, so it is sorta-kinda like acknowledging your marriage doesn't exist.

Until there is a court decision out of Canada (rather than a lawyer's opinion), I would not muck it up anymore.

A lot of people jump into out of state/country marriages without realizing what a legal quagmire that puts them in (not the least of which, this probably came up because you can't divorce unless the state recognizes you as married - which means all of us living in states which don't recognize same gender marriages have to move to a jurisdiction that does and live there long enough to satisfy the divorce statutes there...)

As for taxes - presumably, NY has figured out how to recognize marriages at the state level which are not recognized and have to be filed as Single/Head of Household at the federal level. That shouldn't be any big deal (and if I were in your shoes I would just assume my Canadian marriage was valid - unfortunately, I don't have that option as far as state taxes, since Ohio is a big PITA on the matter.)

[GodlessBiker]

10. In NY, you can re-marry the same person to whom you are already married.

[Ms. Toad]

18. Cool!

As long as they've got that in a statute or case law, you're golden.

[dixiegrrrrl]

33. Fascinating tax issue..

So the state says you can file as married
and the feds say you can't.
So how do you handle the part on the Fed. forms where you deduct the state taxes paid?

Very interesting.
Esp if one wants to file as head of household and deduct the other person.

[Betty88]

34. The taxes as I understand it....

God help the accountant who does our taxes this year...

We have to file the fed as single. For the state we have to make a fake fed return to work off of. Then when doing the state taxes we either have to file as married or married filing separate.

[jberryhill]

5. The NY state AG

Did you satisfy the residence requirement in the province in which you were married?

[Betty88]

7. We live in NY

So we don't satisfy the residence requirement, at the time there was no requirement they were happy to take our $ and fill out the paperwork. What is kind of funny is that I just had them send us an official copy of our marriage license in case we needed it.

[jberryhill]

12. You say two contradictory things

1. "we don't satisfy the residence requirement" and

2. "at the time there was no requirement"

There either was, or was not, a requirement at the time.

Was there a question to that effect in the "paperwork" you filled out?

[jumptheshadow]

13. No, there was no residency requirement to get married in Toronto

That's why we went there after 14 years of "living in sin." We knew upfront that there WAS a residency requirement for divorce but it's never going to be an issue for Betty and me.

[jberryhill]

15. Ah, good...

[Betty88]

14. 1. "we don't satisfy the residence requirement"

When we went up to Canada and got married there was no such requirement thus allowing us to be legally married in that country, at that time. My question now is am I still married or not? If they change that rule will we be grandfathered in or will our marriage just be void. Have to wait and see.

[jberryhill]

16. Ah, okay

There are two questions here.

I am assuming from context that you and "JumpTheShadow" are of the same sex, but that wasn't clearly stated above, and it may be presumptuous of me to guess.

The first question is: Are you married in some province of Canada?

The second question is: Are you married in New York?

Those can be any combination of yes/no. They are separate questions, and they are not necessarily coupled, because the question of "were you married in some province of Canada" pending further proceedings in Canada is probably more relevant to how NY is likely to view it. For example, if you were a US citizen married in Wtfistan in 2004, subsequently continued to reside in the US, and some legal change in Wtfistan in 2012 annuls all marriages there retroactively, then what mattered was whether or not your marriage was recognized previously in the US. You don't have a continuing obligation to keep up with the law in Wtfistan.

Obviously, for the purpose of doing your NY state taxes for last year, there is nothing you can do at this point in NY to fix that.

Where I'm curious is here:

At the time you were married in Canada, your marriage was not subject to recognition in NY, is that correct?

[MedicalAdmin]

21. Wouldn't your last question depend on whether or not...

there is a reciprocity agreement in place between Ontario and NY?

[jberryhill]

22. No agreement is necessary

No jurisdiction cares if marriages there are recognized elsewhere, and states don't generally have treaties with other countries.

[MedicalAdmin]

30. Good to know.

But states and provinces DO have reciprocity agreements and it is common here on the northern border. For example there is a reciprocity agreement covering medical license, college tuition and a few other things between MN and MB.

[jumptheshadow]

24. Yes

Betty and I are both women. When we married in Toronto's City Hall, NY did not recognize gay marriages. Of course, the law changed last year and the state explicitly said it was recognizing same sex marriages from out-of-state and other countries. We were specifically told we have to file for NY State as a married couple and for the U.S. as single taxpayers.

Additionally, NY State made certain benefits, such as state pensions, available to same sex couples who had married elsewhere. So this is potentially a mess...

What's even worse is that we ARE a married couple, we were thrilled and grateful to finally be recognized, and now it's like someone kicked us in the stomach.

[jberryhill]

25. Question

Did NY say it would recognize same sex marriages performed prior to the change in NY's law?

(in other words, was everyone who had been previously married in MA recognized as married in NY, or was this a "going forward" kind of thing?)

Now IF (and please note the IF) the position in Canada on foreigners was that their marriage would have had to have been legal in their jurisdiction of residence at the time of the Canadian marriage, then you might not be married as far as Canada is concerned, but still be married in NY, simply because you have an official document from Canada saying that you were married. It's not as if authorities in one jurisdiction keep up with changes in the law made after the relevant fact occurred.

But, really, you are still married in Canada, because the OP references a pending case. Any decision the wrong way which issues from it may address the status of marriages which occurred prior to the decision.

The only authority relevant to whether NY considers you married is NY. And the only person who can give you an authoritative answer, after the outcome of this case, is the NY AG.

[Ms. Toad]

32. Once a jurisdication recognizes a new class of marriages

(like interracial ones), the standard is that it recognizes all marriages in that class so long as the marriage was valid when and where it was entered into. It isn't really retroactive (because you don't get NY recognition rights retroactively like, for example, the right to go back before NY allowed same gender marriages and re-file your state taxes back to the date of your marriage), but going forward everyone in that class (regardless of when they entered the class) gets the rights and privileges offered by the state to all married couples.

Most recognition of new classes was created by case law, which was actually looking at old marriages to determine whether, for example, NY had to recognize a pre-existing common law marriage from Ohio. Courts couldn't very well determine it could recognize one marriage the 1930s that happened to be involved in a dispute, but only recognize other common law marriages created after the date the court case was decided (Because all those newer marriages would then just sue for recognition so they could get the benefits - way too expensive, just to get lots of court cases that all say the same thing). Typically a first spouse claimed a pre-existing marriage that should be recognized for the purpose of ousting the second spouse from the spoils of the estate),

(The contract comparison is a bit of a simplification, but sometimes thinking of it as a contract, rather than a bundle of rights and obligations makes it easier to understand the concepts.

[Betty88]

27. yep me and jump are both girls

and I guess the answer is yes/yes

We were married in Canada but have not done an official NY wedding. Shortly after we got hitched up north NY state decided to recognize same sex marriages from outside the state even tho at the time it was not legal in NY. We also have an official NYC domestic partnership from way back.

Since it was only recently that NY would allow us to marry we have not gotten around to another wedding but have been thinking about it. We were not in a rush because NY said it would recognize our marriage.

[jberryhill]

29. Then what NY says is what goes

What Canada says is irrelevant, even if Canada later changes its mind.

[Ms. Toad]

9. Marriages generally don't have a residency requirement.

You are familiar with marriages in Niagara Falls, Nevada, and various islands that are all popular wedding sites for heteros, right? No one moves there to establish residency before being married - and all of those marriages are legally binding and recognized by the US.

Divorces, on the other hand, do typically have a residency requirement (which makes matters difficult for same gender couples, as I alluded to in another post in this thread).

[jberryhill]

11. I'm not sure you understand the difference between other states, and other countries

Yes, I was married in Nevada.

Nevada does not have a residence requirement in order to get married.

That's why a lot of people go there to get married. A lot of other places DO have a residence requirement. Having been married in Nevada, I'm not totally stupid on the subject.

This has, long before this particular controversy, caused issues for first cousin marriages, which can be performed in some states, but not in others. There is no "generally true" answer, and any "generally true" answer would be unhelpful to anyone with a specific question anyway.

Talking about marriages in different US states is an entirely different question from marriages of US citizens in other countries.

A foreign marriage will generally be recognized in the US if:

1. It satisfied the requirements for marriage in the jurisdiction where it happened; and
2. It is not otherwise illegal in the usual residence of the couple.

Whether any foreign marriage is recognized in New York is a question solely within the jurisdiction of the NY AG. If the NY AG believes that requirements 1 and 2 were met, then it actually doesn't matter whether Canada does. The safest course, in the event of any doubt, is to do one of (a) get a written opinion from the NY AG, or (b) marry in NY. In fact, option (b) may be the quickest route to getting option (a), since NY may refuse to do (b) if they are of the opinion that the couple is already married.

The interesting issues with foreign marriages generally arise with folks who come here from countries in which multiple marriages are permitted.

[Ms. Toad]

17. It is kind of an occupational hazard that I'm familiar with such things.

I spent many hours studying the numerous court battles over decades which established the general rules. As to state/international recognition, virtually the same recognition rules apply (although the path to getting there was slightly different, and the legal basis is slightly different).

But the long recognition battles are the primary reasons I oppose seeking "equal" domestic partnerships as an alternative to marriage, since those same recognition battles would need to be fought (at high costs to individual couples seeking recognition of individual marriages) before "equal" domestic partnerships are really equal if only because of the lack of recognition by other states, federal governments, and foreign governments. Marriage works because pretty much every state/country has marriage - when you move somewhere new, with a few exceptions, you get the benefits and obligations that your new residence imposes for marriage. For now, most places don't have benefits and obligations to apply - so even if they wanted to grant recognition, you'd get bupkus. And once every place has something called a domestic partnership, then you go through the same battles that happened with marriage (probably abbreviated, but it would not in many cases be automatic).

FWIW, not a single state has a residency requirement, and Canada does not. I an not aware of any countries that do, but I have not checked other specifically. Generally speaking, there are not residency requirements for marriage because of the nature of weddings. Destination weddings, and couples going "home" to marry in a state/country that is no longer really home to either of them, marriage right out of college when the members of the couple maintained their out of state residences, etc. are common (and generate enough revenue) that governments like them.

Divorces, on the other hand, generally take place where the couple resides (or where one member of a couple has moved to after separating), and there are often costs associated with things associate with divorces that are not always entirely covered by the couple (child support with a deadbeat parent, e.g.) States feel more free to impose residency requirements in that situation so they aren't left cleaning up the mess for folks who aren't contributing members of the state. But residency requirements are not as universal as the lack of residency requirements for marriages.

As to multiple marriages, there is fascinating history I have recently become aware of in connection with Native American plural marriages. If I can remember where I put the link to that article I'll come back and insert it later...

ETA: Found it! http://lawdigitalcommons.bc.edu/cgi/viewcontent.cgi?article=1015&context=twlj

[jberryhill]

19. Depends on whether you count a "waiting period" as a residency requirement

In Wisconsin, for example:

765.08  Application for marriage license.
(1) Except as provided in sub. (2), no marriage license may be issued within 5 days of application for the marriage license.
(2) The county clerk may, at his or her discretion, issue a marriage license within less than 5 days after application if the applicant pays an additional fee of not more than $25 to cover any increased processing cost incurred by the county. The county clerk shall pay this fee into the county treasury.

But since the last time I checked, it does look like a lot of states did stuff like that, but some still make you sit around for a few days.

[Ms. Toad]

23. Waiting periods are a different requirement than residency

You can get your license, go play wherever you want to, then return and get married. You can both give out of state addresses, get issued a license, and hang around or not, then get married after the waiting period has expired. In states where there is a waiting period, when the license was returned to the appropriate office after the ceremony the license wouldn't be recorded if you hadn't waited long enough because the marriage date wouldn't be long enough after the issuance of the license.

That's different from residency. Residency is something you'd have to prove (or attest to) up front under penalty of perjury before the appropriate office even issues the license.

[jberryhill]

26. The weird thing in Wisconsin...

Is that if you are from out of state, you have to satisfy the waiting period.

If you are both residing in Wisconsin, then the marriage license has to issue from a county in which you have been residing for at least 30 days.

For out-of-staters, the license has to issue from the county where the marriage will be performed.

It's kind of weird that it's a simpler question for non-residents than residents, but as you mention, most states have accommodated destination weddings. Which makes me wonder how many people run off to the Wisconsin Dells for a fabulous exotic wedding.

[Ms. Toad]

31. That's actually true of a lot of states

Not specifically the longer wait period, but the restriction on residents as to where the license has to be obtained.

I think I'll not go there in the winter, as a destination wedding. Perhaps a couple with a hankering for cheese might?

Ah well...I think I need to find another jurisdiction that lets married couples get married again so I can add a fourth anniversary

(The real one we've been celebrating for 30 years ago, our marriage under the care of our faith community 17 years ago, the legal one in Victoria, BC nearly 8 years ago which made us legal...we really need a fourth one, once our state and country finally wake up and smell the marriage (although technically, I guess that anniversary will be the day the laws change).)

[Ms. Toad]

3. Uh-oh...that's me

May 2004, Victoria, BC. Guess I better check it out.

[Trillo]

28. Seems an awful lot like bait and switch with shades of fraud.

Rewind a few yearly increments, "Come to Canada to get married!"

Fast forward a few yearly increments, "Your marriage is not valid!"

Questions about bait and switch that apparently have led to invalidation of past approvals seems reminiscent of fraud.