In January 2012, the media began reporting on a same-sex couple who came to Canada seeking a divorce. They had been married in Canada back in 2005, but separated in 2009. One lived in Florida while the other resided in the United Kingdom. Florida has a constitutional ban on same-sex marriage, and the United Kingdom (at the time) did not recognize same sex marriage, only civil partnerships. As such, neither one could get a divorce in their respective countries.
Due to Canada’s residency requirements for granting a divorce (i.e. one must reside for 12 months in a province before applying for a divorce), the women did not qualify for a divorce.
Moreover, lawyers for the government argued that they were not even “legally” married, due to the rule that each spouse must have been entitled to marry the other according to (a) the laws of the country where the marriage was celebrated (Canada) and (b) the law of each party’s country of residence before the marriage took place (Florida and the United Kingdom). This is referred to as the “dual domicile” rule of private international law, and would apply to other situations such incestuous marriages, marriages involving minors, or inter-faith marriages, again depending on the law of the country of residence of each party. Thus, under private international law, since neither had the legal capacity to marry each other in Florida or the United Kingdom, their marriage did not meet the second requirement — at least in the eyes of the government lawyers.
Thus, the only way out of the legal anomaly would be for one of them to live in Canada for 12 months. Being a divorce lawyer here in Ottawa, I can appreciate that this would cause unnecessary hardship—both financial as well as social.
This became something of a scandal for the government. There were concerns in the media (both here and abroad) that Canadian same-sex marriages were not going to be recognized. See for example the Globe and Mail article "Despite legal about-face, Harper has 'no intention' of reopening gay marriage". In response to this issue, the Government of Canada introduced Bill C-32, which provided two important amendments to the Civil Marriages Act.
First, all marriages validly performed in Canada between non-residents are recognized as valid marriages regardless of whether or not the non-residents had legal capacity to marry under the law of their respective state of domicile. In other words, if two men or women came to Canada to get married, and their state of domicile does not permit same-sex marriage, Canada will still recognize their marriage as valid and legal. This came into effect on June 26, 2013 when Bill C-32 received Royal Assent.
Second, Bill C-32 established a new process to grant divorce applications for non-residents who reside in a state or country where a divorce cannot be granted due to the laws of their domiciled state (e.g., in cases where same-sex marriage is not recognized by the domiciled state) without having to meet the 12-month residency requirement. This section of the bill came into force on August 14, 2013, by Order in Council.
Although this may appear to permit a fast-track for same-sex divorces, there are several important requirements that must be met in order to satisfy this new divorce procedure.
#1 - The divorce application must be made in the province where the marriage was originally performed. In Ontario that means the application must be made at the Superior Court of Justice, Family Court.
#2 - The criteria for granting a divorce are:
The spouses have lived separate and apart for at least one year;
Neither spouse resides in Canada at the time when the application is made; and
Each spouse is residing for at least one year immediately prior to making the application, in a country that does not recognize the validity of the marriage
#3 - The application can be made:
Jointly (by both spouses together); or
By one spouse with the consent of the other spouse; or
By one spouse, without the consent of the other spouse IF there is a court order from the state where one of the spouses resides declaring that the other spouse:
is incapable of making decisions (e.g. mental disability); or
is unreasonably withholding consent; or
cannot be found (note: if the spouse is found in connection with the service of the divorce application, then consent is required)
Finally, once the divorce has been granted, either ex-spouse may ask the Court to issue a divorce certificate.
Another important aspect of Bill C-32 is that the Divorce Act does not apply to a divorce granted under Bill C-32. This means that applicants under this new procedure are only getting a “paper divorce”, with no equalization or division of property.
If you find yourself in a similar situation, please feel free to contact my office and we can discuss whether these new divorce proceedures for non-residents applies to you and how I may be of help.
James Anderson