In Canada, the patchwork system of laws governing same-sex marriage has run into serious trouble. Foreign couples who previously exchanged vows on Canadian soil may now find their marriages invalidated. Beyond a PR disaster, the issue shows the still-fragile coalition of countries or sections of countries which have legalized the practice. In addition, the current legal fight shows the evolution of marriage over time.
In particular, same-sex couples have now run into the challenge of seeking and obtaining a divorce.
The renewed attention was sparked by the case of an unidentified lesbian couple who married in Canada in 2005 but split up in 2009. The partners are living in Florida and the United Kingdom. Both women want a divorce, but cannot get one where they now live because the state of Florida does not recognize their marriage, and although the U.K. grants civil partnerships to same-sex couples, it does not recognize the Canadian marriage.
The couple went to court last June seeking a Canadian divorce, despite the federal Divorce Act's one-year residency requirement, which they do not meet. Their submission argues the rules are discriminatory, and the couple is seeking $30,000 in damages for negligent misrepresentation by the province of Ontario if their marriage is found to be invalid.
This proceeding once again begs the question: what is the real enemy of marriage? As the situation above shows, same-sex couples can and do get divorced. They will continue to desire to dissolve their marital unions in the ways that heterosexual couples always have. Sexual orientation is the only significant distinction present here.
Homosexuality simply isn’t the destructive force upon society as some conservatives may believe. If gay marriage cannot be characterized as a slippery slope towards crumbling morals and perverse sexual practices, other answers must suffice. Should we wish to have a truly honest discussion, let us consider other options.
One line of argument speaks to a simple lack of personal responsibility or because of external factors. According to this philosophy, marriages in Western society that don’t last are the fault of those who obtain them. People get married for all the wrong reasons. Some get married too soon. Others marry to try to compensate for larger personal problems. Some marry seeking acceptance within themselves and others. Some marry because they've been believers in an idealized fantasy not borne out by reality. Some marry because marriage is culturally expected. These are but a few.
Marriage isn’t the force it once was. More and more, people seem to believe H.L. Mencken's acerbic comment that marriage is a wonderful institution, but who would want to live in an institution. Increasing, no distinction is culturally drawn between cohabitation and the formal, legal process. Speaking to older conceptions of the process, in eleven states, plus the District of Columbia, common law marriage is still legal. For example, in DC, the statue reads,
"A marriage that is legally recognized even though there has been no ceremony and there is no certification of marriage. A common-law marriage exists if the two persons are legally free to marry, if it is the intent of the two persons to establish a marriage, and if the two are known to the community as husband and wife."By that definition alone, I can think of at least three couples I know personally. In addition to those parameters, I know many others who have been happily living together for a long while. The way this statute is worded, verbal intention alone is a satisfactory requirement. For those in their twenties and thirties, marriage is something to be done eventually, but not for a while.
Sharing living space with someone else is common practice, a means of testing the relationship for its solidity and lasting power. Many of our parents got divorced, then frequently re-married afterward. We've juggled step-siblings and dual visits on holidays. We might be forgiven for being a little suspicious.
A few unintended similarities are also present here. Older gay couples often see no reason to be married, believing the ceremony itself is so tainted by discrimination that they want no part. Some have lived together with partners for years. They see no need to confirm formally the bonds of lasting commitment. As far as they were concerned, they never once believed marriage equality would be legal anywhere.
In the meantime, it remains to be seen whether the strict parameters governing same-sex marriage will lessen with time. The liberties that exist now are the product of compromise, even in more ideological liberal countries, portions of countries, and U.S. states. An unsatisfying back and forth is probably in the works for the next several decades.
Even with those legal maneuvers, the state of legal marriage among heterosexual couples will continue to change. If precedent is any indication, some young adults have soured enough on the concept to believe that marriage is unnecessary. How curious that the marriage fight might eventually only be among those who actually hold it in high esteem, sexual orientation aside.