Our divorce lawyers recently discussed the issue of whether Canada will recognize a divorce that was granted in a foreign country. There are special rules that apply to divorcing outside of Canada such that a foreign divorce will be recognized in Canada only if certain conditions are met.
Essentially, a divorce granted outside of Canada will be recognized in Canada if one of the spouses lived in the country where the divorce was granted for at least one year prior to the divorce. Have a look at our divorce lawyers’ article for more information from our family lawyers on the issue of divorcing outside of Canada.
But what about the converse of that issue: Can you get divorced in Canada if your marriage took place in another country?
Can I get divorced in Canada if I was married in a foreign country?
The answer is yes, you can get a Canadian divorce if you were married in a different country, provided certain prerequisites are met. The reason is that when it comes to divorce, it does not matter where you were married – what matters is where you live when the divorce proceedings are commenced. This article will explain what is necessary to make a spouse eligible to apply for a divorce in Canada and the process of how to apply for a Canadian divorce.
Family lawyers discuss divorcing in Canada
Where your marriage took place does not dictate where you can apply for divorce. Even if you were married in a foreign country, Canadian courts have the jurisdiction to grant you a divorce if you have been “ordinarily resident” in the province in which you commence divorce proceedings for at least one year immediately leading up to the commencement of the proceeding. The law regarding jurisdiction in divorce proceedings is contained in section 3(1) of Canada’s Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), which is a federal statute that applies in every Canadian province. This means that if you have been ordinarily resident in British Columbia for at least one year, you are eligible to apply to the BC courts for a divorce, even if your spouse has not been ordinarily resident in BC or Canada during that time.
What does it mean to be “ordinarily resident” to get divorced in BC?
The term “ordinarily resident” is not defined in the Divorce Act. However, there are many BC family law cases that have examined what that means. In determining whether a person is ordinarily resident in BC, the courts will consider the settled routine of one’s life. The significant element is permanence (i.e., where a person regularly, normally or customarily lives, as opposed to a more temporary place where one casually stays or intermittently visits). It is of importance to note, however, that each case is unique and determined after all of the relevant factors are taken into consideration. It is also significant to note that a foreign citizen may become ordinarily resident in BC without having legal immigration status as a permanent Canadian resident. This is because ordinary residence is a question of fact, not dependent on citizenship or immigration status. If you would like to know if you meet the legal test of being ordinarily resident in BC for the purposes of commencing divorce proceedings, contact our family lawyers at 604-526-3333 to discuss your family law circumstances.
Additional preconditions to be eligible for a BC divorce
If you meet the legal test of being “ordinarily resident” in BC for at least one year immediately prior to the commencement of the proceeding, then the BC courts have jurisdiction to hear and determine your divorce proceedings even if your spouse lives in another country. Put another way, it is not necessary for both spouses to be “ordinarily resident” in BC for the BC courts to obtain jurisdiction. However, the issue of jurisdiction is only the first hurdle. Once it has been cleared, there are other preconditions that must be met before you are entitled to a BC divorce. One of the primary preconditions is that you must prove one of the three grounds on which marriage breakdown is established, the most common of which is that you and your spouse have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding, and were living separate and apart at the commencement of the proceeding. This is a legal test and it depends on a number of factors. Living in a different country than your spouse does not necessarily mean that you are living “separate and apart” as required by the Divorce Act to be entitled to a divorce. Contact one of our family lawyers today by calling 604-526-3333 to discuss your eligibility for a BC divorce and whether you meet the grounds that entitle you to a divorce.
How to start BC divorce proceedings when spouse lives abroad
In BC, divorce proceedings are started by filing a Notice of Family Claim with the court, which then must be personally served on your spouse. There are special laws for international service of documents that must be complied with and how long your spouse has to respond to your claim for divorce depends on whether your spouse lives in Canada, the United States, or abroad in a foreign country other than the US. For example, if your spouse lives in Germany, he or she will have 60 days to file and serve a response after being served with your divorce application.
Let Valerie M. Little, divorce lawyer, help you
If you have questions about whether you meet the “ordinarily resident” requirement to commence BC divorce proceedings, whether you are entitled to obtain a divorce in BC, or how to begin the BC divorce application process, contact our firm of separation and divorce lawyers at 604-526-3333 for answers and help in preparing a strategy for moving forward. Valerie M. Little is a family lawyer with over 30 years of experience who would be pleased to meet with you in New Westminster, Coquitlam or Burnaby to discuss your unique family law circumstances.