Same-Sex Couples: When Divorce Isn’t An Option

Since 1995, same-sex couples have had full marriage rights in Canada.  Since these rights are not available in many U.S. states, American couples have travelled to Canada to get married.  So far so good.

What happens, though, in the event that marriages of non-Canadian same-sex couples break down?  Divorce may not be an option.  If their home jurisdiction does not recognize same-sex marriage, it will not grant a divorce for such a union.  Returning to Canada for a divorce is impractical because the Divorce Act states that one of the couple must have been “ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.” This makes for what B.C. lawyer Barbara Findlay calls “divorce catch-22”:

“That means having more than just a mailing address,” explains [F]indlay. “It means having a personal presence according to case law, and that turns out to mean that for people who contracted a marriage here that don’t live in Canada, they are effectively denied a divorce.”

To make matters more complicated, even if one spouse is willing to reside in Canada for the requisite period of time, they are subject to visa requirements. An American citizen can usually enter Canada and stay for six months without a visa, but after six month must apply for an extension. In most circumstances, visitors to Canada are also not allowed to work.

The Ontario Family Law Blog has an excellent round-up with links on this aspect of gay marriage and divorce.  Read it here.

(H/T: Brian Galbraith)

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One thought on “Same-Sex Couples: When Divorce Isn’t An Option

  1. Lainie Petersen

    I met a woman who married her partner in Canada, and this is exactly what she told me. Even if marriage laws differ country to country, you can’t have “international bigamy”, so neither would be free to marry someone else should they break up. Unless, of course, one of them had residency in a state that allowed same-sex marriages and thus would be able to grant them a divorce.

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