Getting unmarried: Same-sex couples need the exit option

by Brenda Cossman

This commentary was first published in The Globe and Mail on September 16, 2004.

Ginger Rogers, move over. The Gay Divorcee now has a whole new face, following the granting of the first same-sex divorce by an Ontario court this week.

The ruling required a cleaning up of the federal Divorce Act, which continued to define ìspouseî in opposite-sex terms. It meant that same-sex couples could get married, but not divorced.

Madam Justice Ruth Mesbur of Ontario Superior Court held that this was unconstitutional. Same-sex folks need the same exit option as opposite-sex couples.

Strictly speaking, they don't need to divorce; they just need to separate.

The first gay divorce, then, is all about status ó about being able to change from married to divorced. It is about being able to get unmarried.

But, in the absence of comprehensive federal legislation, there are many dimensions of marriage and divorce law that haven't caught up with the new reality of same-sex marriage.

Divorce is available in Canada on the no-fault ìliving separate and apartî ground (under which most divorces proceed), and the fault-based grounds of adultery and cruelty. Now enter same-sex marriages.

It is not clear that a same-sex couple would be able to get a divorce on the basis of adultery. Adultery isn't defined in the Divorce Act but has been determined by the courts over the past few hundred years as heterosexual intercourse.

The courts have said that same-sex sex is not adultery. They have said that oral sex and anal sex and any other sort of sex simply doesn't meet the legal threshold. (Bill Clinton was, technically, on the right side of the law when he denied having had an adulterous relationship with Monica Lewinsky.)

So, if one spouse in a same-sex marriage has an affair with a third party of the same sex, it does not qualify as adultery. They would have to have sex with a third party of the opposite sex. In other words, the sex that someone in a gay marriage is most likely to have ó same-sex sex ó does not allow their spouse to divorce them.

Then there is the antiquated law of marriage. Annulments are still available on the basis of non-consummation of the marriage. If a couple is unable to consummate their relationship, they can have their marriage declared null and void ó it never happened.

But consummation has also been defined by the courts in very heterosexual terms. It means heterosexual intercourse.

Not oral sex, not anal sex, not ìunnatural sexî (the term the courts used when they didn't want to talk about the kind of sex that the parties in question were actually having).

It doesn't have to be procreative sex ó in fact, the courts insisted that consummation was not about the ability to have children. It is about the ability to engage in ìnatural heterosexual intercourse.î

According to this common law rule, a same-sex couple could never actually consummate their relationship. It means that, even after a long relationship that included sexual intimacy, one of the spouses could seek an annulment on the basis of non-consummation.

Adultery and non-consummation are examples of old rules that no longer make sense in light of the reality of same-sex marriage. Yet, they will remain the law until a court or Parliament changes them. And changing them doesn't appear to be on Parliament's horizon, as it continues to struggle with same-sex marriage itself.

The bill that the Justice Minister has referred to the Supreme Court of Canada simply redefines marriage to include same-sex couples. It says nothing about divorce or annulment. It focuses on getting into marriage, not out of it.

It is perhaps not surprising that so little attention has been paid to divorce. We do not usually see divorcing couples in the media popping champagne corks with friends and family (although some, no doubt, do). It is not a particularly celebratory moment. But it is an important one. Equal access to marriage requires equal access to its exit options.

The reality of same-sex marriage gives Parliament an opportunity to review our marriage and divorce laws. The federal government has rarely exercised its power over marriage, and the common law rules of marriage are shockingly out of date.

A marriage involving a person under the age of 7, for example, is void. A marriage of a male under 14, or a female under 12, is voidable when that person reaches the age of majority.

The provinces stepped in a long time ago and established minimum age requirements for getting a marriage licence (basically 16). But this is federal jurisdiction, and the federal common law remains until it is changed.

The age, sex and adultery requirements may have made sense a few hundred years ago. But they make no sense today, for any marriage, gay or straight.

Ensuring equal access to the exit options may actually give us a chance to rethink those exit options, and bring them a little closer to the 21st century.