Marriage and Legal Recognition of Same-sex Unions

A Discussion Paper

November 2002

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What are others doing?

Canada is not the first country in the world to address whether and how to legally recognize same-sex unions. Indeed, Canada is coming to the debate later than many countries. Several countries have debated this issue for many years and have come up with a variety of approaches, ranging from same-sex marriage in the Netherlands to the legal recognition of domestic partners, registered partnerships and civil unions in Scandinavia, parts of Europe and parts of the United States. Although some of these approaches appear to be similar, each is quite different, as it has been created to fit the particular society and to comply with the specific constitutional and legal structures in each country. Most countries have decided to retain marriage as an opposite-sex institution, and none has decided to leave marriage exclusively to religion and stop recognizing it in law. In Canada, three provinces —Quebec, Nova Scotia and Manitoba — have passed legislation on the subject, and Alberta has begun public discussions.

In each instance, there has been widespread debate on the approach chosen, and no two approaches have been exactly alike. Moreover, in each instance, the legal effect of the registration is ordinarily restricted to that country, as there is currently no means to ensure recognition of same-sex relationships by other countries.

The wide variety of approaches shows that the issue is complex. A brief summary of some of these models follows:

Within Canada

Four provinces have enacted or are considering laws relating to same-sex unions. Quebec, Nova Scotia and Manitoba have enacted legislation that allows gay and lesbian couples as well as opposite-sex couples to record their relationships in a civil registry. Alberta has set out in its Marriage Act a definition of marriage that requires partners to be of opposite sex for the purposes of solemnization. Alberta, in a bill before their legislature, has also raised the possibility of legal recognition for unmarried couples. Some details are set out below. In addition to these laws, most provinces and territories have now also legislated to provide some or all of the benefits and obligations of married couples to common-law gay and lesbian couples under provincial and territorial laws.

Quebec

Bill 84 — An Act instituting civil unions and establishing new rules of filiation — was passed by the National Assembly in June 2002. The Act amends the Civil Code and a number of other provincial laws to create a new status of civil union partners (open to both unmarried opposite-sex and same-sex conjugal partners). Civil union partners have almost all of the same benefits and obligations under provincial law as married couples do, including the legal relationship between the partner and any children. A civil union can be dissolved by a court judgment, a notarized joint declaration (under some circumstances) or upon the death of one of the partners. A partner to a civil union cannot marry without first dissolving the civil union.

While ensuring equal treatment, the Act makes it clear that civil unions are not marriages, and retains some legal distinctions between the two. For example, some provisions of the Civil Code that relate to legal separation continue to apply only to married couples.

Nova Scotia

Nova Scotia has recently legislated domestic partnership registration for unmarried opposite-sex or same-sex conjugal couples. On registration, the partners have most of the same benefits and obligations as married couples under provincial law, with some exceptions such as adoption. A domestic partnership is automatically dissolved if one of the partners marries another person; it can also be dissolved by a separation agreement, an executed statement of termination by both parties, or by a separation of more than one year, if one or both partners intend not to continue the relationship.

Manitoba

Bill 53, the Common-Law Partners' Property and Related Amendments Act, was passed by the Legislature in August 2002 but has not yet been brought into force. The Bill provides for the registration of two unmarried opposite- or same-sex adultsas common-law partners. Where common-law partners choose not to register, they are deemed to be included after they have cohabited for the period of time specified in each statute. This is similar in many ways to the law in Nova Scotia, although the registered relationship is not automatically dissolved where one partner marries another person, and can only be dissolved after at least one year of separation.

Alberta

In 2000, Alberta amended the provincial Marriage Act to add a specific reference to the opposite-sex meaning of marriage and a notwithstanding clause, as follows:

• «s. 1 In this Act, ...
  (c) «marriage» means a marriage between a man and a woman ...
  s. 2 This Act operates notwithstanding
  
  
• (a) the provisions of sections 2 and 7 to 15 of the Canadian Charter of Rights and Freedoms ...»

In May 2002, the Alberta Minister of Justice tabled Bill 30 — the Adult Interdependent Relationships Act — in the Legislative Assembly. The Bill would provide for the legal recognition of partnership contracts between two unmarried adults, whether or not they are in a conjugal relationship, with the same benefits and obligations under provincial law as married couples. As with common-law partners, adults in relationships of dependency would be deemed adult interdependent partners after three years of cohabitation, even in the absence of a contract.

Other countries

European laws demonstrate a variety of approaches to the legal recognition of same-sex couples. From time to time, there is some confusion in the descriptions of some of these systems, and registered partnerships may be improperly described as marriages.

Same-sex marriage — Only one country in the world, the Netherlands, currently allows for same-sex marriage. The legislation setting up same-sex marriage is separate from that for traditional marriage, and there are some differences in how same-sex and opposite-sex couples are treated under law. For example, the law specifies that same-sex marriage is valid only within that country. The Netherlands first legislated a registered partnership model for same-sex couples and then, several years later, enacted same-sex marriage. Belgium, which has a registered partnership model, is currently debating legislation similar to that of the Netherlands.

Registered partnership models — Many countries in Scandinavia and Europe, and two states in the United States (Vermont and Hawaii), have recently reformed their laws to extend benefits and obligations to same-sex couples by creating a new legal relationship called a registered partnership or a civil union. There are two basic models.

Denmark and Vermont have created registered partnerships open to gay and lesbian couples. Registering a partnership gives a gay or lesbian couple many of the same benefits and obligations as married couples have, usually with the exception of access to adoption and religious marriage. Dissolving the partnership requires «de-registration» through a process provided for in the jurisdiction's divorce legislation.

Finally, France, Belgium and Hawaii have systems that extend beyond conjugal couples to include other relationships between unmarried adults, although they take different approaches because of concerns expressed during the legislative process about preserving the institution of marriage. France recently created a PACS system (pacte civil de solidarité) that allows the registration of private contracts between two unmarried and unrelated individuals, granting access to some benefits and obligations similar to those for married couples. The original proposal had included the possibility of two relatives registering, but there were objections, as some saw this as a possible erosion of the restrictions on marriages between persons who are too closely related («prohibited degrees of consanguinity»). Belgium and Hawaii have adopted a different approach, allowing any two unmarried adults, including relatives (for example, two elderly siblings living together or an adult child living with an elderly parent) to register. However, in Hawaii, common-law opposite-sex couples may not register, so that there can be no officially recognized alternative to marriage.

Defence of Marriage Acts — In the United States, the federal government and a significant number of state legislatures have passed «Defence of Marriage Acts» to confirm the opposite-sex meaning of marriage. The federal Act allows a state to decide not to recognize unions of same-sex couples as marriages, even in cases where a couple's union has been recognized as a marriage in another state. In some states, such as Alaska and Hawaii, debate on this question and court decisions have prompted state legislatures to make amendments to their constitutions to preserve the opposite-sex meaning of marriage.

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