In keeping with the spirit of Pride, today I’d like to discuss the problems of same-sex divorce.
Since the proclamation of the Civil Marriage Act*, same-sex marriage has been legal throughout Canada. As Canada has little or no residency restriction for applying for a marriage licence, a growing number of foreign same-sex couples (especially Americans) come to Canada to get married.
However, as most states of the U.S. do not recognize same-sex marriage, these couples can’t get a divorce in their home state when the relationship breaks down. To get a same-sex divorce, they must travel to a jurisdiction that recognizes same-sex marriage.
Alas, Canada has burdensome restrictions on getting a divorce. Under the Divorce Act,^ applicants must be “ordinarily resident” of the jurisdiction for at least one year immediately prior to the proceeding. Most foreign residents who don’t ordinarily reside in Canada are therefore ineligible to apply for a divorce in Canada.
This can lead to interesting complications. For instance, what if one of the foreign residents, let’s say John, has successfully divorced his same-sex spouse else where, and now seeks to marry someone else in Canada?
For a foreign divorce to be recognized in Canada, the Divorce Act stipulates that one of the parties must reside in the jurisdiction for at least one year immediately prior to the proceeding.# If John has just travelled to a third jurisdiction to get a divorce over the weekend, his divorce will not be recognized in Canada, and John will be ineligible to marry his new partner in Canada.
In other words, John may be stuck with the spouse he married in Canada for a long, long time. This may make succession and estate planning a legal convulsion.
Until the day when same-sex marriage (and divorce) is recognized throughout the world, same-sex couples seeking to get married in Canada should consider the possible awkward consequences of getting hitched and being unable to divorce.
*S.C. 2005, c. 33
^R.S., 1985, c. 3 (2nd Supp.), s. 3
#s. 22, see my earlier post Remarriage & Foreign Divorce in Ontario
