Divorce for Non-Resident Same Sex Couples

Photo by Wolfgang Zenz

same sex couples divorce

Same sex couples who have flocked to Canada in the last few years to get married but who live in a place where same sex marriages are not recognized as legal marriages were, until recently, not able to get a divorce at all.

It was a bit of a catch-22 situation: you can get married in Canada, but you can’t get a divorce in Canada because of the one year Canadian residence requirement. You can’t get a divorce in your own country or state because your local divorce law only applies to marriages that are recognized by your state.

One lesbian couple was forced to resort to a Charter argument in their divorce case in Ontario but the Federal Government helpfully stepped in and plugged this gap in our law.

“We have addressed a legal unfairness for couples who came to Canada to get married but who then found they were unable to dissolve their marriage because their Canadian marriage is not recognized in their country of residence,” said Sean Phelan, a spokesman for the justice department.

The new divorce rules apply to couples who live in a jurisdiction that does not recognize same-sex marriage. The couple has to live apart for one year, but Canadian residence for a year is not required. Both parties need to consent to the divorce. If one party denies consent, the other can challenge that denial in Canadian or foreign courts….>> Read Article

The Civil Marriage Act allows for non-resident spouses who have been married in Canada to apply for a divorce to the court in the province where they were married. They will have to make a court application supported by sworn evidence to show that they meet the specified requirements:

  1. The two spouses have lived separate and apart for at least one year.
  2. Neither spouse resides in Canada or has any plans to reside here.
  3. Both spouses currently live and have lived for at least one year in a state where they can’t get a divorce because their marriage is not recognized.
  4. The spouses jointly apply, or one spouse consents to the other’s divorce application. If the other spouse does not consent, the applicant spouse must present a court order declaring that the non-consenting spouse if incompetent, unreasonably withholding his or her consent or cannot be found.

If you require more information or assistance with a divorce of this kind, contact us.

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