Straight or gay marriage needs a convention

Storm-clouds are brewing in Canada once again over the issue of same-sex marriage due, ironically, to a divorce application filed by two non-Canadians in an attempt to dissolve their Canadian marriage. A lawyer representing the Canadian government has argued that there is simply no need for the pair to divorce, since their marriage was never recognised by their home governments -- the American state of Florida and the United Kingdom.

This throws into question thousands of Canadian same-sex marriages entered into by foreign nationals over the last several years, and these people are -- and understandably -- quite upset. However, given the state of international law, the Canadian government's position may well be accurate: since a marriage by two foreign individuals in another country is really a "marriage-by-proxy" that is expected to be equally valid and respected in their homeland(s), the onus could prove to be upon the individual to ensure their nuptials will be valid once they return to their country of citizenship or residence.

This highlights a serious problem that could have equally dire ramifications should Australia legalise marriage equality in the future. Where would same-sex Australian marriages be legal? Would an Australian marriage entered into by two foreign nationals be valid even here, in Australia? If an Australian married an American, and they chose to be married in Australia but live in the US, what would the legal state of their relationship be both here and there?

Rather than deal with such complexities on a country by country, or even state by state basis, perhaps it's time for a government such as Australia to step up, and work to negotiate an international convention regarding marriage.

Now, before anyone gets their knickers in a twist, I'm not suggesting or even advocating that such a convention be an across-the-board legalisation of same-sex marriages -- such a convention would and should not attempt to enforce laws upon the right of a sovereign jurisdiction to dictate which of their citizens can and cannot enter a marriage contract within its boundaries. However, what it would do is determine to what level signatory countries then respect marriages entered into outside of their borders -- regardless of the personal circumstances of those who entered into such contracts.

This would effectively mean that a couple who satisfies the requirements to marry in one jurisdiction could be certain that their marriage will be recognised by other signatory jurisdictions without question. Obviously, it would be difficult to gain the support of such a convention by countries who are not in favour of same-sex marriage, but they could negotiate, for example, that the convention forbid countries from solemnising marriages between couples of which neither in a citizen of that country.

Of course, such a concession would most-certainly forbid same-sex American or Australian couples from marrying in Canada -- and same-sex marriage advocates would hardly herald that as an improvement. But, the positive ramification for the marriage equality movement would be the certainty that a marriage would simply be a marriage regardless of what signatory jurisdiction the married couple happened to travel to, or live within.

Given the rapidly changing nature of what does, or does not constitute a marriage, and the steady decay of international certainty regarding such a fundamental social instrument, a clear consensus between nations is rapidly becoming a necessity. By taking the initiative to broker such an arrangement, Australia could place itself front-and-centre on the world stage during a time where it is struggling to find international relevance.