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Same Sex Divorce in Canada

Published: November 19, 2013

Last Updated: September 8, 2025

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Same Sex Divorce in Canada

For more information please read “Understanding Same Sex Divorce in Canada”

In Canada, The Civil Marriages Act was enacted in 2005 to extend to same-sex couples the legal capacity to marry for civil purposes.  This was the last step in the long process to enable same-sex couples to marry in Canada.

The flip side of obtaining the right to marry is the right to divorce.

This is where matters became complicated for same-sex couples who married in Canada but who later left Canada.

As per the Divorce Act, in order to obtain a Canadian divorce, at least one of the spouses has to have lived in Canada for at least one (1) year – this is frequently referred to as the “residency requirement” or “one-year residency requirement”.

This requirement has been problematic for same-sex couples who came to Canada to marry because their own place of residence does not allow gays and lesbians to marry.  In effect, these people were stuck in marriage limbo if and when the marriage fell apart unless their home jurisdiction came to recognize same-sex marriage and divorce.

By way of example, recently we had a file wherein a lesbian couple came to our firm seeking a divorce.  This couple resides in Louisiana, where same-sex marriage and divorce are not recognized.  However, the couple had come to Canada eight (8) years ago specifically to marry.  The couple never resided in Canada.   This couple however could not end their marriage in Louisiana, because Louisiana did not recognize their same-sex marriage.    Until Bill C-32 came into effect, they also could not divorce in Canada, because they did not meet the residency requirement of the Divorce Act.

Hence the conundrum prior to Bill C-32 – Canada had allowed this couple to marry by virtue of more progressive views of same-sex equality and the right to marriage.   But, our residency requirement for granting of divorce and Louisiana’s failure to accept same-sex marriage and divorce meant that this couple could never divorce!

Parliament recognized the injustice of this conundrum and responded with a new divorce process set out in Bill C-32, the Civil Marriage of Non-Residents Act.   On August 16, 2013, the Minister of Justice and Attorney General of Canada, Peter MacKay, announced:

With this Bill we have addressed an unfairness faced by couples who came to Canada to get married in good faith, but who then found they were unable to dissolve their marriage because their Canadian marriage is not recognized in their country or state of residence.

Clause 4 of Bill C-32 deals with “Dissolution of Marriage for Non-Resident Spouses” and, as set out in the summary for Bill C-32:

…establishes a new divorce process that allows a Canadian court to grant a divorce to non-resident spouses who reside in a state where a divorce cannot be granted to them because that state does not recognize the validity of their marriage.

So – in nutshell – same-sex couples residing in jurisdictions where gay/Lesbian marriage and divorce are not recognized and who were married in Canada finally have the right to divorce in Canada.

All this said – be warned, obtaining a divorce following Bill C-32 may be more complicated than obtaining a simple divorce where the residency requirement (at least one of the spouses has lived in Canada for at least one year) is met.  Specifically, the divorce application must be made by the spouses jointly or on consent (this requirement may be hard to meet if the spouses cannot cooperate) or, if there is no consent, with a court Order.   Grounds for divorce are also more limited – the parties must have been separated for at least twelve (12) months.  There are no short cuts (i.e. adultery or cruelty).

Legal advice is strongly recommended for any individual/couples seeking to obtain a divorce in Canada pursuant to Bill C-32.

Written by Lisa Gelman

Senior Lawyer

Senior Lawyer Lisa Gelman has over 25 years of family law experience and founded Gelman & Associates to provide strategic legal counsel in family law matters concerning divorce, parenting, separation, and more.

Frequently Asked Questions - divorce & separation

If you or your spouse are not in Canada, you can not get a divorce. However, you can end your marriage under the Civil Marriage Act. You can only end your marriage in Canada and not another country because your marriage is only valid in Canada.

Yes, you can date while separated in Canada. However, there is a legal implication to that. If the timing of your new relationship comes into question during your divorce, your relationship may be considered as an affair or adultery.

Yes. Our legal services are available in person, online, and over the phone. In addition, although our main office is located in Toronto, we have over 8 additional satellite offices located throughout central, southern, western, and eastern Ontario to serve family law clients across the province.

If you are litigating your matter, social media posts made by your spouse or partner may be relevant, especially if they contradict what your spouse is claiming in his or her pleadings.

For example, if a spouse is claiming financial hardship, a Facebook post that shows that spouse going on an expensive trip or posing with an expensive car can undermine such claim and potentially affect that party’s credibility in court if presented as evidence on a motion or at trial.

Further to photograph-based posts, statements that are made on social media by one party can be relevant if said posts (i) are related to the litigation, to issues of parenting and/or (b) contradict statements that were made by the party in his or her pleadings. For example, if a party is attempting to establish that he or she is an appropriate custodial parent, then recent social media posts about extensive partying and drug use made by that party may be relevant in court, as they may speak to that party’s fitness when it comes to appropriate supervision of a child in his or her care.

Yes, you can separate from your spouse. Separation does not have to lead to divorce. However, if you plan to remarry, you must file for divorce after one year of separation. Also, you may want to consider that if you just leave, your spouse may file for spousal support or child support.

It is advised however that before leaving, you try to have a separation agreement with your spouse.

Divorce can be a difficult decision to make, especially if you’re unsure if your partner will sign the petition. However, a divorce does not require your partner’s consent. Although it may be a long process if your partner doesn’t comply, they will not be able to stop you indefinitely.

The only ground for a divorce in Canada’s Divorce Act is marriage breakdown. This could include spousal infidelity, although infidelity alone could be difficult and emotionally taxing to prove in court.

You are not legally required to retain a lawyer to apply for divorce. However, a divorce application may involve important questions about parenting, support, property and procedural requirements. Independent legal advice can help you understand how a proposed agreement or court application may affect you.

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