By IPS Correspondents
OTTAWA, Sep 17 2004 (IPS)

A lesbian couple who married just days after same-sex marriage was declared legal by a Canadian court in 2003 has been granted a divorce by a judge in Toronto.

The couple, who lived together for 10 years, was legally married after the Ontario Court of Appeal ruled that Canada’s marriage laws cannot discriminate against gays and lesbians. Just days later, the partners separated and filed for a legal divorce.

Martha McCarthy, a lawyer for one of the women, told the judge hearing the case that it is the world’s first legal same-sex divorce.

In an affidavit filed last week, one of the women said she knew "as early as the day after the ceremony that the marriage was not going to survive." She cited "long-standing difficulties, both in our physical relationship and on several emotional levels".

"Prior to our marriage, we both knew there were problems. I had naively hoped that the marriage would help to resolve some of the issues in our relationship, but unfortunately it was not a solution. I was aware almost immediately after the ceremony it was a mistake."

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 has to reflect that interpretation.

McCarthy said the marriage crumbled within days of the wedding in June 2003. "My client has a lot of sadness. They believed marriage would solve their problems," she said.

The judge who heard the divorce case Monday ordered the identities of the women to be kept confidential. The petition was filed under the names "J.H." and "M.M.", the initials of the women’s lawyers.

McCarthy, M.M.’s lawyer, said the ruling by Ontario Superior Court Judge Ruth Mesbur to hear the case as a regular divorce sets a standard for the country. "It’s a matter of federal law. It has national application," she said.

"We believe this is not just the first gay or lesbian divorce in Canada, but actually the first gay or lesbian divorce in the world," McCarthy told reporter gathered outside the court.

"It means that the (federal) 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 marriage."

In the federal election held here last spring, conservative politicians tried to make same-sex marriage an issue, but it did not catch on with the country’s voters. They returned the Liberal Party to power in a minority government, even though it had been tainted by a patronage and kickback scandal.

In her decision, Judge Mesbur declared "unconstitutional, inoperative and of no force and effect the definition of ‘spouse’" in the Divorce Act. She reserved her written reasons and recommendations.

Canada has about 3,000 same-sex married couples. Same-sex marriage is legal in Ontario, British Columbia, Quebec, Manitoba and Yukon, jurisdictions that are home to more than two-third’s of the country’s people.

The federal government has submitted draft legislation on same-sex marriage to the Supreme Court. Hearings on the matter will begin in three weeks.

Critics of the federal action, including McCarthy, say the federal government’s reluctance to legislate a national acceptance of the right to same-sex marriage is comparable to the debates over gay and women’s rights, including abortion. In almost all major rights cases, courts in Canada, rather than the national parliament, set the standards.

"It’s very consistent with the history of gay and lesbian equality claims in this country that the courts do all the heavy lifting regardless of various legislatures’ position that the courts should do as little as possible," she said.

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