Court OKs first same-sex 'divorce'

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TORONTO (AP) -- An Ontario court has approved Canada's first same-sex "divorce" after a judge ruled that the definition of spouses in the Divorce Act is unconstitutional.

The lesbian couple -- identified in court documents only as J.H. and M.M. -- had been together for almost 10 years when they "married" in June 2003, shortly after the Ontario Court of Appeal legalized same-sex "marriages." They separated five days later.

Superior Court Justice Ruth Mesbur on Monday struck down the section of the Divorce Act that defined spouses as a man and woman and said only they can divorce.

"The definition of a spouse is unconstitutional, inoperative and of no force and effect," Judge Mesbur said.

Lawyer Martha McCarthy, who represented one of the women, said the ruling is historic.

"We believe that this is not just the first gay or lesbian divorce in Canada, but actually the first gay or lesbian divorce in the world," she said outside the court.

"It's an important step when we talk about the legal landscape as it exists at the moment."

In July, less than 24 hours after the couple's divorce petition was publicized, the federal Justice Department conceded that excluding homosexuals and lesbians from the definition of spouse in the Divorce Act would prohibit them from divorcing and was, therefore, unconstitutional.

"It would be absurd to say it's legal to get married but not divorced," Miss McCarthy said. "As usual, though, the federal government's approach to all things involving same-sex issues is, 'If we can obfuscate and delay, we will.'"