Right to Same-Sex Divorce in Canada
Gay marriage became legal in Canada in 2005 at a time when many other countries refused to recognize gay marriage. Thousands of Canadian same-sex couples have got married here since and countless gay couples have travelled to Canada from all over the world to get legally married.
In fact, Canada has become a premier gay wedding destination. But what about same-sex divorce? Let’s talk about gay divorce rights for same-sex spouses who reside in Canada, and for same-sex couples who live elsewhere but were married in Canada.
Gay divorce rights in Canada
In Canada, same-sex spouses have the same rights on separation and divorce as heterosexual spouses. The federal Divorce Act, (R.S.C., 1985, c. 3 (2nd Supp.)) is the law that allows Canadian residents to get divorced and it applies equally to same-sex spouses and opposite-sex spouses who are legally married. It does not matter if the marriage took place in Canada or in another country so long as it was a legally recognized valid marriage in the jurisdiction where the marriage took place.
Canada’s Divorce Act also provides for “corollary relief” which includes orders to resolve important issues like spousal support, property division, child support, parenting time and parenting responsibilities. To be eligible for a Canadian divorce order, one or both of the spouses must have been “habitually resident” in Canada for at least one year when the application for divorce is started. It is important to note (and discussed in greater detail below) that corollary relief is only available to Canadian residents who apply for a divorce.
Gay divorce for non-residents of Canada
While Canadian divorce laws apply equally to same-sex and opposite-sex spouses who live in Canada, the laws are different for those who are not residents. If non-resident spouses want to divorce, they may run into difficulties. This includes same-sex couples who travelled to Canada to get married because gay marriage is not legal in their home country. These spouses can not apply to get divorced where they live because their marriage is not legally recognized there. It also includes same-sex couples who were living
in Canada when they married but have since moved to another country where gay marriage is not legal. If gay marriage is not legally recognized in their current country of residence and they can not apply to dissolve the marriage in their current country of residence and they are no longer Canadian residents, they are not eligible to apply to end their marriage under our country’s Divorce Act.
Thankfully, a new Canadian divorce law was created to help same-sex spouses left in legal limbo caused by complicated jurisdictional problems. In 2013, Canada’s Civil Marriage Act, S.C. 2005, c. 33 was amended to allow same-sex divorce for non-residents. Here are the conditions that must be met to get a gay divorce in Canada when neither spouse is habitually resident in Canada at the time the application for divorce is filed:
- The marriage must have taken place in Canada.
- The marriage is legally valid in Canada but not in the spouses’ current country of residence.
- Neither spouse can get a divorce in their current country of residence because that state or country does not recognize the validity of their marriage.
- The spouses have lived in their current country of residence for at least one year.
- A breakdown of the marriage can be shown by the spouses living separate and apart for a minimum of one year before applying for the divorce.
- The application for divorce must be filed in the province where the marriage took place. So, for example, the divorce application would be filed in the BC Supreme Court if the marriage took place in BC.
Gay divorce rights under the Civil Marriage Act are more limited than under the Divorce Act. Nonresident spouses who are applying for divorce under the Civil Marriage Act can not claim any corollary relief. This means same-sex spouses who are not living in Canada can get a divorce order to legally end their marriage but can not ask the court to make an order for spousal support or division of family property. This can put divorcing gay couples at a significant disadvantage. The good news is that it is possible for the separating spouses to resolve their additional marital issues such as support and division
of assets and debt in a written separation agreement.
Same-sex divorce advice from a trusted BC lawyer
Gay divorce is a streamlined process for Canadian residents. The process is thornier for same-sex spouses who got married here but do not live in Canada. If you want to legally end your same-sex marriage, you deserve trusted legal advice. You need to know your rights and options. No matter what questions or issues you might be dealing with, you will receive attentive care, respect, and understanding at the office of Valerie M. Little Law Corporation. Valerie M. Little is a divorce lawyer who has been practising for over 30 years. Ms. Little's practice is exclusively devoted to divorce and family law issues. She serves clients throughout the Lower Mainland, including Burnaby, Coquitlam, New Westminster, Maple Ridge and Langley. To schedule a consultation with our experienced divorce lawyer, contact Valerie M. Little Law Corporation today at 604-526-3333.