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Divorce for Non-Resident Same-Sex Spouses in Canada

Canada continues to be a global leader when it comes to gay rights. It was the fourth country in the world to legalize gay marriage; however, it took a big push from the public, several debates, and many years before the bill, the federal Civil Marriage Act, was introduced in 2005. In 2003, it was only Canada that allowed same-sex marriages between people who were not residents. During that year, five percent of the marriages involved non-residents; however, the vast majority were residents of Canada. Same-sex marriages became legal in all Canadian provinces on these dates:

  • Ontario – 10 June 2003
  • British Columbia – 8 July 2003
  • Quebec – 19 March 2004
  • Yukon – 14 July 2004
  • Manitoba – 16 September 2004
  • Nova Scotia – 24 September 2004
  • Saskatchewan – 5 November 2004
  • Newfoundland and Labrador – 21 December 2004
  • New Brunswick – 23 June 2005
  • Alberta, Prince Edward Island, Nunavut, and Northwest Territories – 20 July 2005

Same-Sex Marriage and the Canadian Law

You should carefully decide on family matters. Whether the divorce is contentious or amicable, an attorney can help you find a fair resolution. Especially for couples who live outside the country, a divorce attorney can help you with the implications involved to guarantee proper arrangements. With this said, can same-sex couples who aren’t residents of Canada file for a divorce?

  • In 2005, the Civil Marriage Act changed Canadian law to allow the legal union between same-sex partners because every individual has the right to marriage equality without discrimination. Once the act has been passed, the number of married same-sex couples tripled between 2006 and 2011, with a 42.4% rise in same-sex couple families.
  • Since this act was passed, many same-sex couples have married under Canadian law; however, many never resided or no longer lived in Canada. Thousands of couples traveled from their home countries that didn’t legally recognize same-sex marriage to get married in Canada. However, these couples now find themselves in a dilemma if it comes to filing for divorce.

Same-Sex Divorce for Non-Residents in Canada

Same-Sex Divorce for Non-Residents in Canada

Many same-sex couples traveled for gay marriage in Canada. However, as same-sex marriage isn’t legal in their countries, they’ve had problems filing for divorce. Because they’re not residents, their marriage isn’t under the Divorce Act in Canada. It prevented marriage dissolution and separation while living outside of the country. Married couples can only file for divorce if at least one of them resided in Canada for a year or more before the filing.

Learn About Seeking for Spousal Support After Separation or Divorce

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Civil Marriage of Non-Residents Act

In 2013, Canada introduced the Civil Marriage of Non-Residents Act to address marriage and divorce between non-resident opposite or same-sex couples. It states that the court can grant a divorce to couples who got married in Canada. You need to meet particular conditions to be eligible, including:

  • For at least a year before the filing, each of the spouse should have been living in a state where divorce can’t be granted because the state didn’t recognize the validity of their same-sex marriage.
  • Neither spouse resided in Canada when the application was filed.
  • Each of the spouses should establish a breakdown of their marriage, causing them to live apart and separately for at least a year before the filing.
  • Both spouses should file for divorce. If one spouse can’t be present, they can still file the divorce. It only requires the consent of the non-present spouse or a court order declaring that the other spouse is either:
    • Unreasonably withholding consent
    • Incapable of making decisions.

Filing for divorce doesn’t require the presence of either spouse but should be done in the province they registered the marriage. One should sign the necessary documents, and they can do this in a Notary Public Office in the residing state of that spouse. Then, they can file for divorce in a Canadian court.

Things to Consider After Divorce

Child Support One parent will be held responsible for providing child support to the other parent. Make sure to review your state laws to know how you can determine the amount of a child support payment.
Property Division Usually, assets received before marriage or after separation are the sole property of the individual who acquired them. However, it can also be divided. If you bought a property during the marriage, this is the most important asset to be divided. You’re not required to specify how every asset you have will be divided unless you want to. It’ll be simpler to list the items that have significant and sentimental value.
Custody Issues If you have children, you should decide each parent’s rights about each child’s physical and legal decision-making responsibility. Legal decision-making responsibility is the right to make important life decisions about the child’s upbringing, including health care, finances, and education. It can be arranged in different ways. Your child’s best interest will determine the arrangement for decision-making responsibility.
Spousal Support Lastly, alimony is money paid from one spouse to another to help support them. Each state has different laws about how much alimony is allowed. In other states, alimony is limited or prohibited since spouses seeking spousal support receive a more significant share of marital property than those in other states.


Pro Tip

Having an experienced family law lawyer on your side will ease your anxiety and make the process easier if you aren’t sure whether your divorce would be recognized in Canada.


Do You Need a Divorce Lawyer?

Divorce for non-resident same-sex couples can be challenging. Couples should seek the assistance of an attorney to get legal counsel and proper help. Gelman & Associates is among the trusted firms that specialize in family law. We focus on preserving family relationships through efficient legal proceedings. Contact Gelman & Associates today to schedule a FREE consultation.

FAQs About Same-Sex Divorce for Non-Residents in Canada

Corollary relief is the court making an order about matters other than the divorce itself, including parenting time, decision-making responsibility, and financial support. You’re asking the judge to file for divorce without having a finalized judgment about the other problems, including your parenting, child and spousal support, and marital property division issues. It makes it difficult to accurately determine and predict whether or not corollary relief would be granted.

Canada follows no-fault divorce. Your only ground for a divorce is marriage breakdown. You can show your marriage has broken down if any of the following applies to you:

  • Your spouse has committed adultery.
  • Your spouse has been mentally or physically abusing you.
  • You’ve been living separately for a year or more.

If you file for divorce due to a one-year separation, you can still live together for three months to try to reconcile. If things don’t work out, you can continue with the application as if you had not spent time together.

Spousal support is the financial support that one spouse might have to pay to the other for their financial assistance after their divorce or separation. It can also be called “maintenance” or “alimony.” Usually, it’s paid monthly, but it can be paid as a lump sum. One spouse may have to pay for spousal support if such payments meet one or more of the main reasons for setting this clause out in the Divorce Act, including:

  • To help a spouse in financial need arise from the breakdown of the marriage
  • To compensate a spouse for solely taking care of the children or child support
  • To compensate the one who uses their ability to earn income during the marriage
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