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YOU CAN MARRY IN CANADA, BUT WHAT ABOUT THE DIVORCE?

Jun 11 2014

Same-sex couples started coming to Canada as tourists for the sole purpose of getting married when Canada legalized same-sex marriage in 2004, because they could not get married in their home state or country.  Canada has married thousands of such couples, and it was not until later, when some of these couples began to separate, that a problem with Canada’s divorce laws became apparent.

Under Canada’s Divorce Act at the time, married couples could only get divorced in Canada under the terms and conditions of the Divorce Act.  The Divorce Act requires at least one member of the couple to have resided in Canada for a period of at least one year prior to applying for a divorce in their province of residence.

These couples that were marrying in Canada, and then returning home to the state or country where they live could not get divorced in Canada.   They also could not get divorced where they live, because their marriages were not recognized as valid in their home state or country.

L. and M. were a same sex couple from the United States, who were married in Toronto in 2005.  The couple separated in 2009, and one moved to Florida, the other to the United Kingdom.   Neither Florida nor the United Kingdom recognized their marriage, and so would not grant them a divorce.  The couple sought to be divorced in Ontario in 2012.  At that time, because neither was a resident of Ontario, the court would not grant them a divorce.  The couple challenged Canada’s divorce laws.

In 2013 the federal government enacted an amendment to the Civil Marriage Act, in order to fix this loophole in the divorce laws.  The new amendments allow non-resident couples to be divorced in the Canadian province in which they were married if they are unable to obtain a divorce in the country or state where they reside, because their marriage is not recognized as valid there.

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