Coming Out or Transitioning During a Divorce

If you are getting a divorce, there may be many reasons for it. You may have grown apart from your spouse, especially during a long-term marriage. You may have realized you have different interests, or different perspectives on life. One reason might be that you have decided to come out as being part of the LGBTQ+ community.

Coming out as LGBTQ+ can mean many things for you. For example, you may be discovering your authentic self through your sexual orientation. You may also be undergoing a transition process through gender reassignment. Whatever your journey is (or has been) you may feel that the emotional, legal, and tradition-based bonds of your marriage no longer align with where you are in life.

If you are engaged in this type of personal evolution – including possibly changing your name and related pronouns – you may have some questions about how your divorce process might be impacted.

The Legal Impact:

Under Canadian Family Law, marriage is available to two people of any sexual orientation. We discuss this further in our article, How Same-Sex Marriage Became Legal in Canada. This means that members of the LGTBQ+ community can freely marry. Conversely, they are also able to divorce without the process being distinct in any way. 

Since the gender of spouses is irrelevant in Canadian law, transitioning to a different gender does not impact the divorce process. This holds regardless of where you are in your journey. Therefore, if you have newly come out in the LGBTQ+ community or are currently undergoing a medical transition, the legality of your divorce is the same.

Name Changes:

While transitioning does not on its own impact the divorce process, choosing to adopt a new first name and pronouns to match with your new identity is a minor exception.

Let’s start from the beginning. As a married person in Ontario, after the wedding ceremony you may have decided to assume your spouse’s name, or you may have legally changed your name (usually within the first 90 days post-wedding). You may have also simply kept the name you were given at birth.

Now that you are on the brink of divorce, any materials filed with the court must bear your legal name. 

So, if pre-divorce you want to change that legal name and its related pronouns as part of your transition, you must:

• Submit an application under the provincial Change of Name Act;
• Be at least 16 years of age;
• Have lived in Ontario for the past 12 months;
• Complete a Police Record Check; and
• Sign a Joint Declaration of Conjugal Relationship, giving your spouse notice that you are changing your name.    

Normally, all name changes registered under the Change of Name Act must be published in a government publication called The Ontario Gazette (in both paper and online). However, if you are a transgender person then there is a potential exception to protect your privacy. You can submit a “Request for Non-Publication” to ServiceOntario.

Once complete, your name change is legal. If your divorce process was already completed before your name change took effect, then nothing further needs to be done. If your divorce is still in-progress at that time, then you will need to amend your divorce documents and Court-filed materials, to reflect the change.

Gender Changes on Identity Documents:

Especially if you are a member of the LGTBQ+ community who is transgender or non-binary, the gender information on your legal documents may not match your self-identity or lived experiences.   Under the Ontario Human Rights Code and related policies of the Ontario Human Rights Commission,[1] if you are born in Canada you have the right to define your own gender.  The corollary is that you can change the gender information on your identification documents if you wish.

However, the gender-identifying documents primarily affect provincially-based topics (things like birth certificate, driver’s license, OHIP card and Photo Identity Card).  These are not a fundamental part of the divorce application process, which is governed by federal law. Changes to these documents can therefore be done in stages, and can certainly be deferred until after your divorce is finalized. 

The Emotional Impact:

Leaving aside the legal impact and these practical concerns, your decision to come out as a member of the LGTBQ+ community has many emotional repercussions. On one hand, you may be dealing with a great sense of relief at the opportunity to live authentically. On the other hand, you may have some trepidation around the divorce process itself. You may also be feeling some guilt around leaving your partner, even if it means you can both move on to more satisfying lives.

From your spouse’s point of view, they are also likely feeling a lot of emotions. While grappling with the customary divorce-related concerns, they might also feel an acute sense of betrayal as if you were “living a lie” for the span of your marriage.

Remember, both of you will likely go through a grieving process and a sense of loss. This is normal for everyone whose marriage ends in divorce, for whatever reason. You might both benefit from finding a gender-friendly therapist who can help sort out these issues.

If you have any further questions, feel free to contact our team at (416) 661-2777. We are always happy to help.

[1] Ontario Human Rights Code, R.S.O. 1990, c. H. 19; Ontario Human Rights Commission, Policy of Preventing Discrimination Because of Gender Identity and Gender Expression found online at:  http://www.ohrc.on.ca/en/gender-identity-and-gender-expression-brochure