Family Class: Assessing Conjugal Relationships

“Persecution” in this context refers to actions taken by a state or government to oppress or punish, usually by law, persons in certain types of relationships, such as homosexual ones. Persecution can also mean strong social sanctions whereby the culture and mores of the country result in ostracism, loss of employment, inability to find shelter, or other sanctions, for persons in common-law opposite-sex or same-sex relationships, even if such relationships are not technically illegal.

“Penal control” is any punitive restriction imposed by authorities on an individual or group that does not apply to the general population. For example, in some foreign jurisdictions, two persons in a homosexual relationship may be unable to live together because it is illegal.

Applicant or sponsor legally married to another person

Persons who are married to third parties may be considered conjugal partners provided their marriage has broken down and they have lived separate and apart from their spouse for at least one year, during which time they must have cohabited in a conjugal relationship with their current partner. Cohabitation with a common-law partner can only be considered to have started once a physical separation from the spouse has occurred. A conjugal relationship cannot be legally established if one or both parties continue to maintain an intimate relationship with a person to whom they remain legally married.

Although a couple in a conjugal partner relationship might have known one another while one or both was still with their legally married spouse, they could not be in a conjugal relationship until there was a separation from the legally married spouse and the new conjugal relationship established. Officers must be satisfied that a principal applicant is separated from and no longer cohabits with a legal spouse. If information provided in IMM 5532 (PDF, 2.21 MB) (Relationship Information and Sponsorship Evaluation) is insufficient, officers should request additional evidence, such as:

• a signed formal declaration that the marriage has ended and that the person has entered into a common-law relationship
• a separation agreement
• a court order about custody of children substantiating the marriage breakdown
• documents removing the legally married spouse(s) from insurance policies or wills as beneficiaries (a “change of beneficiary” form)

In the above circumstances, the legal spouse of the principal applicant will not be examined and, therefore, is not a member of the family class.

Prohibited – conjugal relationships

Conjugal partner relationships are recognized to have most of the same characteristics as marriages and exclusive common-law relationships. By definition, a conjugal relationship has most of the same legal restrictions as marriage, such as prohibited degrees of consanguinity. The list of relationships falling within the prohibited degrees in the Marriage (Prohibited Degrees) Actapplies equally to conjugal partners.

The minimum age for spouses, common-law partners and conjugal partners is 18 [R117(9)].

See also:

• Excluded relationships

Family class: Excluded relationships

The Regulations prescribe relationships that exclude an applicant from membership in the family class. Applicants in the following situations are not members of the family class:

• the spouse or common-law partner is under the age of 18 [R5]
• bigamy or polygamy – either the sponsor or the spouse was married to someone else at the time of the marriage
• the marriage or relationship is not genuine or was entered into primarily for the purpose of acquiring any status or privilege under the Act (R4) (relationship of convenience)
• the sponsor and the applicant have been separated for at least a year, and either one is in a common-law relationship with another person
• when the sponsor applied for permanent residence, the applicant was a non-accompanying family member of the sponsor and was not examined [R5, R117(9)(d), R117(10) and (11) and R125(1)(d), R125(2) and (3)]

The Regulations provide further precision about excluded family members noting that the spouse who was living separate and apart from the sponsor and was not examined, is excluded from the family class as per section [R117(11)(b) / R125(3)(b) and R117(9)(d) / R125(1)(d)].

Relationship breaks down and the sponsor wants to sponsor a previously separated spouse

A previously separated spouse who was a non-accompanying family member and was not disclosed and examined cannot be sponsored by the spouse in Canada, even if the spouse’s common-law or conjugal partner relationship has ended.

See also:

• Excluded members of the family class (above)

A marriage certificate is not taken as prima facie proof of a relationship because the marriage had broken down and a common-law relationship had been established.