Divorce in Canada for Foreign Residents
The Act to Amend the Civil Marriage Act was tabled today in Ottawa. It seeks to adjust the act to allow non-Canadian residents married in Canada to be able to get a divorce in this country. Until this legislation passes, there are two bars to non-residents getting divorced here. The first is the residency requirement. At least one of the two married people must reside for at least one year in the province through which they are applying for the divorce. The second is that the current state of the law will not allow people to get divorced if their resident state did not acknowledge the marriage as valid to begin with. This is usually not a major hurdle. Marriage in Canada is generally accepted as valid throughout the world. Canada, however, recognizes and authorizes same sex marriages and there are many jurisdictions in the world which neither allow nor recognize those marriages.
The newly proposed legislation provides that if people marry in Canada, and if the jurisdiction in which the parties reside does not recognize the marriage, those people can get a divorce in Canada. The specifics are as follows:
- Both parties or one party may apply for the divorce. If only one party is applying and does not have the consent of the other, s.7(2) sets out that that party must obtain an affidavit from the jurisdiction in which he or she resides indicating why the other party’s consent is not forthcoming. This is extremely problematic. Divorce, unsurprisingly, is often accompanied by non-cooperation and given that the legislation is clearly focused on same sex marriages, the need for an affidavit could be an insurmountable barrier if it must be obtained from a jurisdiction hostile to such unions. In Saudi Arabia or in the Sudan, for example, homosexuality invites the death penalty. (more…)
Posted: February 17th, 2012 under Divorce, Legislation Analysis.
Tags: Divorce, Foreign, Foreign Residents, Gay, Residents, Same Sex
