A lesbian couple in Ontario may face problems getting what is believed to be Canada's first same-sex divorce because the law limits divorce to male-female couples.

The two women, identified only as M.M. and J.H., were married in Ontario on June 18, 2003, a week after Ontario's Court of Appeal legalized same-sex marriage.

They separated five days later.

Martha McCarthy
Martha McCarthy

However, the Divorce Act, which is federal legislation, defines spouses as "either of a man or a woman who are married to each other."

Toronto lawyer Martha McCarthy and her client, M.M. have asked the Ontario Superior Court of Justice to issue an order that the federal definition of spouse under the Divorce Act is unconstitutional. She said the federal government is due to respond next week.

"It's unconstitutional to give straight people the freedom to divorce, and not gays and lesbians," said McCarthy.

She said she has written to the federal government asking it not to fight their court challenge.

Federal Justice Minister Irwin Cotler said Wednesday he believes if gays and lesbians have the right to marry, they should have the equal right to divorce.

"In September, there could be gay marriage and gay divorce in the province of Ontario," said McCarthy.

The Ontario court was the first to legalize same-sex marriage in Canada. British Columbia, Quebec and the Yukon soon followed.

The federal government referred a draft bill changing the definition of marriage to the Supreme Court for its consideration. Hearings on the issue are scheduled to begin this fall.