Divorce is never easy, but some divorces are more complicated than others. Foreign marriage is one factor than can complicate the divorce process. What are divorce laws in Canada? Can you get a divorce if married abroad? Let’s have a look at how to get a divorce in Canada if you got married in a foreign country.
Divorce Laws Canada
The Divorce Act is the law that governs divorce in Canada. It is a federal law that applies throughout the country. The Divorce Act covers many important issues, including who is eligible for a divorce in Canada, asset division on separation, parenting time after separation, and support for children and spouses.
Divorce procedure in Canada is a different story. Throughout Canada, divorce process is the responsibility of the provinces and territories. The procedures vary from province to province. So, if you are looking to get a legal divorce in Canada, you will need to meet the requirements in the Divorce Act and follow the specific rules in your province when bringing your divorce application.
Divorce in Canada if married abroad
You can get divorced in Canada if you married abroad by meeting certain conditions. The first condition is in section 3(1) of the Divorce Act, which deals with 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 habitually resident in the province for at least one year immediately preceding the commencement of the proceeding.
The legal definition of “habitually resident” is the key. Habitual residence is the place where in the settled routine of an individual's life, he or she regularly, normally, or customarily lives. So, for example, if you have been living in British Columbia for at least one year immediately before applying for a divorce, and you continue to live in B.C., you are “habitually resident” in this province and the BC Supreme Court has jurisdiction to handle your divorce proceedings.
If your spouse has been habitually resident in BC for at least one year immediately preceding the commencement of divorce proceedings, the application for divorce can be brought in BC—even if you do not live here and even if your marriage took place in a foreign country.
Other conditions for legal divorce in Canada
Habitual residence in a province or territory is the first condition to be eligible for divorce in Canada. There are two other conditions that must be met for you to apply for divorce in Canada.
First, your marriage must be legally recognized in Canada. Generally speaking, if your marriage was valid in country where it was performed, BC will recognize it as a valid marriage as well. The marriage ceremony that makes the marriage “official” must have been done in accordance with the local laws in the country where you got married. Legal capacity to marry, however, is governed by the rules of the place where you usually live; if there are concerns about legal capacity to marry (e.g., because of young age at the time of marriage), you should seek legal advice from a divorce lawyer. One example of legal incapacity is that you were too young at the time you got married.
Second, you must establish that there has been a breakdown of your marriage. Canadian divorce law requires a divorce applicant to show that there has been a breakdown in the marriage. Marriage breakdown can be shown in one of three ways: (i) you and your spouse have been separated for at least one year; (ii) your spouse has been physically or mentally abusive, or (iii) your spouse has committed adultery. Most people go with the first option—living separate and apart for at least one year—because it is the simplest option and does not require proof of adultery or cruelty.
How to file for divorce in Canada
There are two types of divorce in Canada: contested divorce and uncontested divorce. In a contested divorce, spouses are unable to agree on one or more significant issues such as property division, support or parenting arrangements. This leads to courtroom hearings or a trial where a judge or master will decide the contested issues.
An uncontested divorce occurs when both spouses mutually agree on all major aspects of their legal separation. In this case, there is no need for the spouse to appear inside a court room. It is possible to file an uncontested divorce without legal representation by filling out several forms and filing them with the court. However, it is best to get the services of a divorce lawyer so you understand your rights and obligations and complete the forms properly. That is especially true if you were married in a foreign country and want to ensure that your divorce application is not rejected by the Judge and it is processed as quickly as possible.
Get trusted legal advice from a British Columbia divorce lawyer
Valerie M. Little Law Corporation is a BC family law firm that has helped thousands of individuals file for divorce. Valerie has many years of experience as a BC family lawyer and works with a qualified and compassionate team to ensure you get the best possible service.
Valerie M. Little Law Corporation is centrally located in New Westminster and serves all area throughout Metro Vancouver including Burnaby, Port Moody, Maple Ridge, Coquitlam, Port Coquitlam, Vancouver, North Vancouver, West Vancouver, Squamish, Whistler, Richmond,
Surrey, Cloverdale, Delta and Langley.
To schedule your confidential appointment, call 604-526-3333 or email her office today.