Same-Sex Divorce for Non-Residents – The Law in a State of Flux

February 25, 2013
Ron Shulman

Article written by Ron Shulman

In Canada, same-sex marriage was legalized more than a decade ago, under the federal Civil Marriage Act, S.C. 2005, c. 33.   Since then, many same-sex couples from other countries have come to Canada specifically for the purpose of getting married.

However, some of these same foreign couples later learn that they are not eligible to apply for a divorce in connection with their same-sex Canadian marriage, because they do not satisfy the prerequisites, one of which is a one-year residency requirement applicable to all parties seeking divorce in this country.  The problem is frequently compounded by the fact that these same couples cannot divorce in their home countries either, because those jurisdictions simply do not recognize same-sex marriages at all, much less same-sex divorces.

This was precisely the scenario addressed by the Ontario courts last summer in connection with a lesbian couple who had come here from England and Florida in 2004 in order to get married.  When they decided to divorce six years later, they not only failed to meet the residency requirement, but they also faced a legal quandary because neither of their home jurisdictions recognized gay marriage.  Their predicament also raised a constitutional issue involving equality rights, because under current Canadian law a divorce can only be obtained if the original marriage was first recognized in the parties’ home country.   The related constitutional questions are still working their way through the courts for final resolution.

So then how do foreign same-sex couples, who married in Canada, obtain a divorce in this country later on?

A clear solution may be on the horizon:  in February 2012, the federal government introduced legislation in the form of Bill C-32 (the β€œCivil Marriage of Non-residents Act” also subtitled β€œAn Act to amend the Civil Marriage Act”), which expressly addresses the issue of Canadian marriages between non-residents, whether opposite-sex or same-sex.  Specifically, if enacted Bill C-32 would change the law so that all marriages performed in Canada, including those between non-residents, are valid for the purposes of Canadian law as long as the parties were domiciled here.  (And this would be the case even if at the time of the marriage one or both of the non-resident did not have the capacity to enter into a marriage under the laws of their own country).

By extension, these same parties would be eligible for a divorce to be granted by Canadian court, in those situations where the non-resident spouses live in a state where a divorce cannot otherwise be granted to them because their home state does not recognize the validity of their marriage in the first place.

Unfortunately, however, it is now a full year since its introduction, yet Bill C-32 still remains at only the first-reading stage; in other words it is not yet in force.

Clearly, the law in this area is presently in flux.  Same-sex couples who are contemplating a divorce in Canada should therefore consult an experienced lawyer to advise them as to the current state of the law and the proper procedure to be followed.   Shulman Law Firm is a Toronto-area firm of experienced Family Lawyers who can provide practical advice and effective representation relating to the steps and processes involved in a same-sex divorce.   Contact us to set up a consultation.