You can get a divorce in Canada even if you were legally married in an Islamic country, such as Iran, Iraq, or Afghanistan. You do not need your husband’s consent to divorce in Canada, and it does not matter where your husband lives now. The prospect of divorce may seem scary or impossible, but Valerie M. Little can help you achieve your freedom by getting a Canadian divorce. Here is what you need to know.
How to get divorced in BC
To get a Canadian divorce, what matters is where you live when you start divorce proceedings. If you have lived in BC for a least one year, Valerie can help you get a Canadian divorce, whether your spouse lives here or he still lives in a country where Muslim law applies.
The law regarding jurisdiction in Canadian divorce proceedings is set out in section 3(1) of Canada’s Divorce Act, R.S.C., 1985, c. 3 (2nd Supp.), and it applies to all divorces in this country:
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.
What this means is that a Canadian court has the authority to grant you a divorce if you have been “ordinarily resident” in the province in for at least one year immediately leading up to when you initiate the divorce proceeding. The term “ordinarily resident” is not defined in the Divorce Act.
The determination of ordinary residence is highly fact-specific, but generally speaking, your ordinary residence is where you are settled and where you “maintain your ordinary mode of living with its accessories, relationships and conveniences.” It is where you live as an inhabitant as opposed to a visitor.
As such, if you have been ordinarily resident in British Columbia for at least one year and are still living in BC when your case is started, you are eligible for a Canadian divorce, even if your spouse has not been ordinarily resident in BC or Canada during that time. The residence requirement gives the Supreme Court jurisdiction to grant you a divorce here in British Columbia.
Differences between Islamic divorce and Canadian divorce
Divorce in Muslim law countries is different than in Canada. For example, The Civil Code of the Islamic Republic of Iran sets out two forms of divorce: irrevocable divorce and revocable divorce.
A husband can start a revocable divorce whenever he wishes by saying or writing Talaq in Islam ("I divorce thee," or similar). The husband has the right to take back the wife during the three-menstrual cycle waiting period (“iddah”) that follows. There are two types of irrevocable divorces: one is “Khul’a” (also translated as khola, khole, of khula in islam) which is a divorce at the request of the wife, achieved by the wife giving consideration to her husband; the other is “Mubarat” divorce by mutual consent, which may be granted as long as the wife has not demanded the return of consideration. So, divorce in Muslim law may result in a wife losing her right to the mahr (dowry).
In contrast, there is only one type of divorce in Canada, and either spouse can start the process. Unlike Sharia law divorce, neither spouse has to consent to the application for a divorce and your rights to property do not depend on who asked for the divorce. Divorce in Canada is granted if the court is satisfied that there has been a marriage breakdown (see here for more on showing breakdown of a marriage and the three possible grounds for divorce, which are: living separate and apart for at least one year, adultery, and cruelty). Property issues, child custody, and maintenance are decided by the court without reference to “fault” or the reasons a spouse has for wanting to end the marriage.
You can initiate a divorce in Canada
In Canada, you can initiate a divorce. In BC, the divorce process is started by filing a Notice of Family Claim with the court. I can help you prepare the documents you need, file them with the court, and ensure that they are properly served.
It is important to note that divorce documents must be personally served unless you obtain an Order from the Judge for alternate service. There are certain laws for the service of court documents in foreign countries.
Status of your relationship: Legal marriage? Religious marriage? Common-law marriage?
Regardless of where your marriage took place, only a legal marriage will be recognized in Canada. In other words, whether you were married in Canada or in another country, you are only eligible for divorce if your marriage was legal in the first place.
Consider for example, if you were married in BC by an Imam who is not licenced to conduct a valid marriage ceremony in the province, or participated in a Nikah Muslim marriage ceremony, you may not be legally married under Canadian law.
Similarly, if you were married outside of Canada, there are instances where your marriage may not be recognized here. For example,
(a) if it is a polygamous marriage (a man married to multiple women);
(b) if your husband was legally married to a first wife before you and did not legally divorce from his
first wife; or,
(c) you were under the age of 15 at the time of the marriage ceremony.
If you are not sure about the legal status of your marriage, it is strongly recommended that you get legal advice.
Please note you may still have some rights to property division, spousal support, and child support under BC family law even if you are not legally married.
More information on how divorce in Islam differs in Canada
A Muslim divorce or a religious divorce is not the same as a legal divorce in Canada. It does not matter that the Muslim divorce or religious divorce was granted in Canada or abroad.
An Islamic divorce certificate does not legally end a marriage. To legally end your marriage in Canada, you must follow the process in the Divorce Act.
An Imam does not have the legal authority to grant a divorce. In Canada, only a judge can grant a divorce order.
When you apply for divorce in Canada, you can ask the court to decide on issues such as child custody, support, and division of property (this is called “corollary relief”).
If your husband divorces you in another country, you may lose the right to claim some types of corollary relief in Canada. It may be possible to apply to a BC court to set aside an improperly obtained foreign divorce. For example, if you were not given notice of the foreign divorce proceedings, or if your husband did not have a “real and substantial connection” with the foreign country to give that court jurisdiction to deal with the case. This requires determination of complicated legal questions such as jurisdiction and the application of foreign law. It is highly recommended that you get legal advice if such issues arise in your situation.
Canadian divorce laws can not force your husband to grant you an Islamic divorce. However, if your husband threatens to withhold a religious divorce to manipulate family law negotiations or to prevent you from getting re-married, you have options. For example, the BC court may refuse to allow him to participate in the family law proceedings or may overrule a divorce settlement that was obtain by such threats.
There is no such thing as an automatic divorce after a long separation in Islam or under Canadian law. The only way to legally end your marriage is to apply for and obtain a Canadian divorce order.
You can file for divorce at any point after separation, but a BC court will not grant your divorce order until you have lived separate and apart for at least one year. Your husband does not have to agree to the separation, but once you have a settled intention to separate you must communicate your intention to your husband, either through your conduct or words.
A BC court will only grant a divorce if it is satisfied that reasonable arrangements for your children have been made, including child support. Options for resolving issues arising from your marriage include negotiating a Separation Agreement or applying first to the Court for orders settling parenting, child support, and spousal support before filing for divorce. Only the BC Supreme Court has authority to make orders about divorce and the division of family property.
Talk to an experienced divorce lawyer to get help achieving your Canadian divorce
The first step to securing your freedom is as simple as a phone call. If you want advice from a BC divorce lawyer with respect to divorce in Canada, contact Valerie M. Little Family Law Corporation. Her practice is exclusively devoted to issues of divorce and family law in the Metro Vancouver area.
No matter what family law questions or issues you might be facing, she is experienced, knowledgeable and able to provide you with trusted legal advice to protect your rights and help you move forward with your life. Contact her office by phone at 604-526-3333 or complete the contact us form to schedule your fee-based private and confidential consultation.
THIS BLOG IS INTENDED AS GENERAL INFORMATION ONLY AND IS NOT INTENDED TO PROVIDE LEGAL ADVICE FOR ANY PARTICULAR SITUATION. PLEASE CONSULT A QUALIFIED FAMILY LAW PROFESSIONAL BEFORE MAKING ANY FAMILY LAW DECISIONS.