Table of Contents
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.
It is difficult to determine how long the divorce process will take as there are issues that can make the situation more complicated. For instance, the Divorce Act allows couples to file for a divorce provided that both sides are residents of a Canadian province for at least a year. However, divorces for same-sex couples can only be filed in provinces where the marriage is recognized. If the couple wishes to file for divorce in a province that does not recognize their union, they may not be able to claim support or divide property.
Canada has allowed same-sex marriage for roughly 17 years already. The Canadian Parliament passed legislation making same-sex marriage legal nationwide in 2005.
Determining alimony is one common spousal support issue in same-sex divorces. In Canada, the chances of alimony being awarded rises the longer the marriage has lasted. However, in many cases, couples have lived together for much longer than the time they were married. Some judges may consider the unmarried years as part of the marriage period, while others won’t.