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Current Divorce Rules in Canada for Non-Residents
Challenged by Couples wishing Gay Divorce

In 2005, Canada passed laws which allowed for gay marriages in Canada.  Gay couples from all over the world came to Canada to obtain a legal marriage.  The problems arose when they returned to their home country and later decided they wanted to divorce.  Since gay marriage and subsequently gay divorce was not recognized in their home country, their only option was to obtain a divorce in the country (Canada) which granted their marriage. The problem was, in order to obtain a divorce in Canada, you had to meet the residency requirement.  Therefore, it was legal to get married in Canada, but it was not legal to get a divorce in Canada–if they were non-residents.

The problem also exists, say, for people that got married while residing in Canada, and later took up residency in another Country which does not permit them to obtain a divorce (regardless of whether it was a gay divorce).  Therefore, the problem applies to all couples, gay or otherwise, that:

  • were married in Canada;
  • no longer-reside in Canada; and
  • don’t qualify for a divorce in the country in which they are residents.

Residency Requirement

You must meet the residency requirement in a Province in order to file for a Divorce in that Province. If you are filing in Alberta, either you or your spouse (or both of you) must be able to declare:

  • The Plaintiff or the Defendant (or both) have been ordinarily resident in the Province of Alberta for at least one year immediately preceding the date of the Statement of Claim for Divorce.

The same rule applies to every Province. The law regarding jurisdiction is found in the Divorce Act, and is as follows:

“Jurisdiction in Divorce proceedings

3.(1) A Court in a province has jurisdiction to hear and determine a Divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.”

Our company processes divorces in Alberta only.  Currently, we cannot assist you by filing a divorce in Alberta unless you or your spouse has been ordinarily resident in the Province of Alberta for at least one year prior to commencing your divorce. The same rule applies to each province.

Proposed Amendment to Civil Marriage Act Allowing Non-Resident Gay Divorces

***NEW****  The Civil Marriage Act has been updated to now allow non-residents of Canada to get a divorce in Canada.  We recently completed our first divorce for a non-resident couple.

SUMMARY

The amendment to the Civil Marriage Act provides that all marriages performed in Canada between non-residents, whether they are of the same sex or of the opposite sex, that would be valid in Canada if the spouses were domiciled in Canada are valid for the purposes of Canadian law even if one or both of the non-residents do not, at the time of the marriage, have the capacity to enter into it under the law of their respective state of domicile. It also establishes a new divorce process that allows a Canadian court to grant a divorce and corollary relief 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.
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Civil Marriage Act

The Civil Marriage Act now allows Non-Resident Divorces in Canada

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