The Pitfalls Of Foreign Marriage And Divorce: Part 2
- 23 December 2015
Getting divorced in another country can also lead to some unintended consequences.
In my last blog post, I discussed the potential issues with getting married outside of your home country.
In order to get divorce in Alberta, you or your spouse must have lived in Alberta for one year prior to filing the divorce paperwork. The same rule applies to all other provinces in Canada.
Whether or not you meet the residency requirements of the Divorce Act is based on something called “ordinary residence”. If a person had long absences from Alberta in the year preceding the filing of the Statement of Claim for Divorce, then they may not have ordinary residence in Alberta.
Even outside of Canada, one of the parties is usually required to live in the jurisdiction where the divorce is taking place, though sometimes the length of residency is less than one year. For those of you that are fans of Mad Men, you probably know that you only need to live in Nevada for six weeks if you wish to get divorced there.
For the most part, if you get divorced in another country and the proper procedures are followed, your divorce will likely be recognized in Canada; however, there are some major exceptions to this.
Pursuant to section 22 of the Divorce Act, in order for Canadian courts to recognize a foreign divorce, one of the parties must have been ordinarily resident in that foreign jurisdiction for at least one year immediately preceding the commencement of proceedings for the divorce.
Even if a foreign divorce does not meet the requirements of section 22 of the Divorce Act, the foreign divorce may still be valid in the eyes of Canadian law. The factors to determine this are complex and fact-specific. Please seek legal advice if you are concerned about the validity of your foreign divorce.
If a foreign divorce is invalid under Canadian law, then there may be some unintended consequences for those that believe that they are divorced but are, in fact, still legally married to their ex-partner. Any property acquired during marriage would likely still be considered matrimonial property, so a property division between the parties may need to take place. There may even be criminal consequences to an invalid foreign divorce. For example, if a subsequent marriage has taken place, then that person would have two spouses and would be committing a Criminal Code offence.
There are also some other pieces of legislation that give major consideration to a person’s legal spouse. For example, the Dower Act requires that you obtain the consent of your spouse prior to selling your home. If this requirement is not met, then the person selling the property may be required to pay damages to their spouse. This could easily become a big issue if the person selling the property believed themselves to be divorced when they were actually still legally married.
If you are unable to file for divorce because you have lived in Alberta for less than one year, be advised that you can still deal with guardianship, parenting issues, child support and spousal support issues in Alberta Courts by filing a Family Law Act Claim in either the Court of Queen’s Bench or the Provincial Court of Alberta.