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understanding same-sex divorce

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

Canada’s divorce laws made worldwide news in 2012 and sparked an international debate about same-sex marriage and understanding same-sex divorce. The source of this controversy was Canada’s Civil Marriage Act. As known to every Toronto divorce lawyer, the federal legislation was enacted in 2005 and legalized same-sex marriage for civil purposes. However, the Civil Marriage Act did not allow non-resident same-sex couples to obtain a divorce after having exchanged nuptials within Canada. As a result, Toronto divorce lawyers received an upsurge of the same searing questions: Is my marriage valid and can I, if need be, get a divorce?

An unidentified lesbian couple from Florida brought the apparent oversight to the attention of the Federal Government through their personal experience. The couple wed in Ontario in 2005. Four years later, in 2009, they were seeking a divorce from an Ontario court.  One woman remained in Florida, while her estranged spouse resided in the United Kingdom.  Forced to seek out a divorce in Ontario because their marriage was deemed invalid in both Florida and the U.K, the couple was shocked to find out that the Ontario courts would also not grant the divorce.

In 2012, the question remained: why would the Ontario court refuse to grant a divorce to this couple, a couple who had been married in Ontario just seven years prior?  Toronto divorce lawyers turned to the legislation and at the time the divorce was sought, Canada’s Civil Marriage Act stated that all non-residents – whether same-sex or not – could not be granted a divorce unless the couple had been living in Canada for a year or more.

Of course, within the context of same-sex marriage, this legal requirement takes on a different and higher level of significance. In light of the fact that Canada is one of only a handful of jurisdictions that will marry same-sex couples, the residence requirement was unrealistic and unattainable for many married couples. Both Toronto divorce lawyers and anxious couples alike, awaited federal action.

In February 2012, the Federal Government introduced a bill declaring same-sex marriages valid for the purposes of Canadian law. The bill outlined new legal rules for same-sex divorce for non-residents. The bill would ultimately require the amendment of the Civil Marriage Act. The bill is progresssing through the legislative process and has not yet been proclaimed law.

There are requirements and stipulations to the obtainment of a divorce for non-residents. These conditions are similar to those prescribed for residents of Canada. If you are considering a separation from your same-sex spouse, it is recommended that you first make an appointment with a Toronto divorce lawyer. Laws around same-sex unions and dissolutions have changed both rapidly and dramatically. Therefore, this area of law is relatively new. As such, legal advice from a Toronto divorce lawyer will help to ensure that you are receiving the most informed and experienced legal counsel.

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