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non-residents of Canada

Civil Marriage Act amended to allow for non-resident divorces

The Civil Marriage Act has been amended to address a legal oversight that stopped same-sex couples who were married in Canada but who did not live in Canada from being able to get divorced. This issue made headlines last year when a couple, originally from Florida, were denied a divorce in Ontario.

In 2005, the Civil Marriage Act came into force and gave same-sex couples the right to marry in Canada. Soon after that, the definition of spouse in the Divorce Act was amended to allow same-sex couples to divorce. The issue arises though from the spotty legality of same-sex marriages across the world. Under the Divorce Act, you can only file for divorce if you have lived in the province in which you are starting the divorce for at least one year.

This led to a situation where a couple, in this case from Florida where same-sex marriage is not legal, came to Canada and got married but then could not get divorced. Since same-sex marriage is not recognized in Florida and since the state didn’t consider them married, they could not get divorced there. Because they weren’t residents of Canada, they could not get divorced here either.

This new amendment allows for non-residents who were married in Canada to apply for a divorce under the Civil Marriage Act as long as:

  • they have been separated for at least one year,
  • neither of them are living in Canada when the application is made, and
  • they both live in a place where a divorce cannot be granted because their marriage is not considered valid.

JP Boyd, a family law lawyer, points out on his blog that there are two things to note about divorces under the Civil Marriage Act:

  1. The Divorce Act does not apply to divorces granted under the Civil Marriage Act, which means that someone getting a divorce under the Civil Marriage Act can’t apply for custody or access to any children, or for child or spousal support.
  2. While the divorce is legal in Canada, it may or may not be considered legal where you’re from depending on the law there.