In our globalized world, people are increasingly living, working or travelling to countries other than the ones in which they were born or raised with a newfound ease, desire and frequency.
Given that the worldwide spread of the coronavirus has disrupted many people’s travel routines, both business and/or personal ones, many are considering their life’s circumstances and reflecting on their living conditions. In addition to deciding whether they are content with their current living arrangements, their place and country of residence and what place they want to call “home”, people have started to think about their home life and the state of their marriage.
As a result, family lawyers are receiving an increased number of calls about the divorce process and how one can obtain a valid divorce. In addition, common law spouses contemplating separation are inquiring about the validity of their religious or foreign divorce and its impact on the rights of their common law spouses.
According to s. 3(1) of the Divorce Act, a court has jurisdiction to hear a divorce proceeding “if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.”[1]
A divorce proceeding is defined as a proceeding where “either or both spouses seek a divorce alone or together with a child support order, a spousal support order or a custody order.”[2] However, in order to obtain a divorce in Canada, there must have been a breakdown of the marriage.
The breakdown of the marriage may be established in one of three ways:
- the spouses have been living separate and apart for at least one year;
- the spouse against whom the divorce proceeding is brought has been physically or mentally cruel to the spouse seeking the divorce; or
- the spouse against whom the divorce proceeding is brought has committed adultery. While one of these three criteria must be satisfied, living “separate and apart for at least one year” is the criterion most often relied on to establish the breakdown of the marriage.
The divorce proceeding in Canada is not a religious divorce proceeding. In fact, Canada does not recognize religious divorces that occur in Canada as valid civil divorces. That being said, a religious divorce in Canada has its own importance for the parties to ensure that there is no barrier to religious remarriage.
However, if a party obtains a religious divorce in another jurisdiction outside of Canada and the religious divorce is recognized by that foreign jurisdiction, the divorce will also be recognized in Canada provided that the party was resident in the foreign jurisdiction for at least one year immediately preceding the application for a divorce.
The residency requirement is a common theme that is both relevant to the court’s jurisdiction for a divorce proceeding commenced in Canada and to the determination of whether the foreign divorce, including a foreign religious divorce, will be legally recognized in Canada. Even if the religious divorce is recognized by the foreign jurisdiction, the residency requirement must be satisfied for the religious divorce to be legally recognized in Canada. If one of the spouses was not ordinarily resident in the foreign jurisdiction for at least one year before starting the divorce application, then the foreign divorce will not be recognized in Canada.
The recognition of foreign divorces is based on the principle of reciprocity. Given that Canada expects the divorces granted by its Canadian courts to be recognized by other countries, the Divorce Act similarly provides for the recognition of foreign divorces. It is only in rare circumstances that a properly obtained foreign divorce should not be recognized as valid. However, given the importance of “ordinary residence”, each case will turn on its facts and the application of the case law to inform the analysis and determination of a party’s “ordinary residence”.
[1] Divorce Act, RSC, 1985, c 3 (2nd Supp) [emphasis mine].
[2] Ibid, s 2(1).
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