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Experienced Family Lawyers Representing Clients in Same-Sex Divorces

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”.

Understanding Same Sex Divorce In Canada

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The Effect of the “Residency Requirement”

The “residency 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 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.

  • Grounds for Same Sex Divorce in Canada

    • Cruelty
    • Adultery
    • Separation

  • Conditions for non-resident Same-Sex Divorce in Canada to be Granted

    • The couple has not lived together for at least one year, which caused their marriage breakdown.
    • Neither spouse lived in Canada when they applied for divorce.
    • They have lived in a place for at least a year when divorce can’t be granted because they don’t recognize its validity in the first place.

Civil Marriage of Non-Residents Act

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 then 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.

Essentially, with the passage of this Act, same-sex couples residing in jurisdictions where same-sex marriage is not recognized and who were married in Canada finally have the right to divorce in Canada. However, the process may be more complicated. Grounds for divorce are also more limited – the parties must have been separated for at least twelve months, which is the same time frame as heterosexual couples. 

Pro Tip

When looking for a lawyer that you want to work with, ensure that they are knowledgeable about the specific laws that may affect your divorce, regardless of the jurisdiction in which you are currently residing.

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For Assistance in Obtaining a Same-Sex Divorce in Canada, Contact our Family Law Lawyers at one of one Our Six Offices throughout Ontario

Legal advice is strongly recommended for any individual seeking to obtain a divorce in Canada pursuant to Bill C-32. Contact Gelman & Associates today to learn how our experienced family law lawyers can protect your rights and assets during separation and divorce. With six offices conveniently located throughout North York, downtown Toronto, Mississauga, Scarborough, Aurora and Barrie, we are easily accessible by transit and off-highway. Call us at (416) 736-0200 or 1-844-736-0200 or contact us online for a confidential initial consultation.

FAQs: Same-Sex Divorce

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.

The same divorce law applies to heterosexual and same-sex marriages in Canada. However, there are other factors to consider. If the divorce is a mutual decision, it may take about six or seven months if everything falls into place on time. If it is a contested divorce, it may take longer than expected.

In Canada, spouses, whether same-sex or heterosexual, have the same rights and obligations under Canadian law.

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