Same-sex spouses living abroad and Divorce
In Canada, it is possible to obtain a divorce according to the Divorce Act if one of the spouses has resided there for at least one year.
Spouses residing in a foreign state who want to divorce must apply to the court of this state, even if they were married in Canada. Such a judgment of divorce will be recognized in Canada.
But, what happens if the spouses are of the same sex and live in a state where their marriage is not recognized?
In this exceptional case, the court of the province in Canada where the couple were married, on application, could grant them a divorce if the following conditions are met:
a) there is breakdown of marriage as established by the fact that the spouses have lived apart for at least one year prior to submitting the application;
b) at the time of application, neither spouse is resident in Canada;
c) each of the spouses resides - and for at least one year before the filing of the application, resided - in a state where the divorce cannot be granted because the validity of the marriage is not recognized.
The application may be made by both spouses jointly or by one of them with the consent of the other or, failing consent, if it is established in court that the other spouse:
a) is unable to make decisions about their marital status because of a mental disability;
b) refuse consent without cause;
c) was not found.
On taking effect, a divorce granted under these circumstances is valid across Canada and dissolves the marriage of the spouses.
If the same-sex spouses (or one of them) are (is) living in Canada, the standard rules apply.
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These documents are not legal opinions.