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Can Married, Non-Resident Same Sex Couples Get Divorced In Canada?

Jul 23 2019

Do you know someone who came to Canada to marry their same-sex partner but now wants a divorce? Would existing laws take care of this?

When Canada enacted the Civil Marriage Act in 2005, which legalized marriage between persons of the same gender, many same sex couples travelled to Canada on holiday for the purposes of getting married.

But for those couples whose marriage was not recognized in their home state or country – and who later separated with the intent of legally ending their marriage – there was no mechanism in place for them to obtain a divorce.

What were the reasons behind this? For couples whose same sex marriage was not recognized in the state or country where they resided, that same state or country’s divorce laws would not apply to them. They were also not able to get a divorce in Canada because the Canadian Divorce Act had a one-year residency requirement so non-residents were unable to apply.

The federal government addressed this matter in 2013 with the enactment of the Civil Marriage of Non-residents Act. This Act permitted the divorce of non-residents who were married in Canada provided three conditions were met:

  • There was a breakdown of the marriage as established by the spouses having lived separate and apart for at least one year before the making of the application;
  • Neither spouse resided in Canada at the time the application was made; and
  • Each of the spouses was residing and – for at least one year immediately before the application was made had resided — in a state where a divorce could not be granted because that state did not recognize the validity of the marriage.

This was good news for non-resident same sex couples who had traveled to Canada to get married. In the unfortunate event that their marriage had broken down, leading to a separation, they were now able to be granted a divorce in the country as well.

Contact RDM Lawyers

If you have questions pertaining to marriage, separation, divorce, parenting arrangements, child support or adoption, contact a member of the family law team from RDM Lawyers today to set up a consultation.

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