04 September 2013

Civil Marriage Act Amended to Allow Non-Residents to Divorce

The federal Civil Marriage Act came into effect in 2005 to give same-sex couples the right to marry throughout Canada by defining marriage as "the lawful union of two persons to the exclusion of all others;" this followed a number of appeal decisions which held that restricting the right to marry to opposite-sex couples was unconstitutionally discriminatory. This was great, of course, however because the Divorce Act defined spouse as "either of a man or a woman who are married to each other," opposite-sex couples could marry but they couldn't divorce.

This oversight was corrected a few months later (the Divorce Act now defines spouse as "either of two persons who are married to each other"), but still left foreign couples marrying in Canada somewhat in the lurch. This problem is what the new amendments correct. Let me explain.

Under s. 3 of the Divorce Act, before a spouse can start a court proceeding for a divorce order, he or she must have been "ordinarily resident" for at least one year in the province in which the proceeding is brought. There are, however, no similar residency requirements to get married, which is why same-sex couples from across the world came flocking to Canada once same-sex marriage had been legalized; see barbara findlay's blog post on the subject and on the new amendments. As a result, non-resident couples marrying here were left in the difficult position of being legally married (for Canadian purposes at least) but unable to get divorced if their home states defined marriage as being the exclusive to opposite-sex couples.

My simplistic take on this issue was that if a non-resident couple's home state didn't recognize same-sex marriage, then they wouldn't be considered to be married in their home state and, as a result, didn't need to get divorced; see my post "The Validity of Same-Sex Marriages" for a more complete explanation. Whether I was right or wrong on the issue — I suppose there's an argument to be made that if your relationship has tanked, you'd probably like to be divorced, even if your marriage is only recognized in a few jurisdictions, perhaps to avoid future legal problems or perhaps to obtain a sense of closure — the federal government has acted.

By Order in Council 2013-889, made under the Civil Marriage of Non-Residents Act, the Civil Marriage Act has been amended as of 14 August 2013 to allow special access to the Canadian courts for non-residents marrying in Canada who need to get divorce and can only get divorced here; see the Canada Gazette notice. Section 7 of the new act provides a means to get a divorce order other than through the Divorce Act and says this:
(1) The court of the province where the marriage was performed may, on application, grant the spouses a divorce if
(a) there has been a breakdown of the marriage as established by the spouses having lived separate and apart for at least one year before the making of the application; 
(b) neither spouse resides in Canada at the time the application is made; and 
(c) each of the spouses is residing — and for at least one year immediately before the application is made, has resided — in a state where a divorce cannot be granted because that state does not recognize the validity of the marriage.
(2) The application may be made by both spouses jointly or by one of the spouses with the other spouse’s consent or, in the absence of that consent, on presentation of an order from the court or a court located in the state where one of the spouses resides that declares that the other spouse
(a) is incapable of making decisions about his or her civil status because of a mental disability; 
(b) is unreasonably withholding consent; or 
(c) cannot be found.
(3) Despite paragraph (2)(c), the other spouse’s consent is required if that spouse is found in connection with the service of the application.
However, there's two things to be aware of.

First, under s. 8, the Divorce Act does not apply to divorces granted under the Civil Marriage Act, which means that a person seeking a divorce under the Civil Marriage Act cannot apply for custody or access to any children, or for child support or spousal support.

Second, under s. 10, the divorce has legal effect throughout Canada, but not necessarily in jurisdictions outside of Canada. The validity of the Canadian divorce will be determined under the law of the couple's home state.

2 comments:

  1. This language does not appear to be confined to same-sex marriage, but to any situation where a "state does not recognize the validity of the marriage", such as some countries not recognizing marriages except within one religion, etc. Is that correct?

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    Replies
    1. That's right. The language is not confined to same-sex marriages.

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