Family Class: Assessing the Legality of a Marriage

The Divorce Act also preserves common-law rules respecting recognition of foreign divorces. For example, Canadian courts may recognize foreign divorces when:

• they are granted by a court in a country where neither spouse was ordinarily resident, but where the decree is recognized by the law of that country and where one or both were ordinarily resident at the time of the divorce. For example, a party living in California obtains a divorce in Nevada. If California recognizes the Nevada divorce, it is valid in Canada.
• either party can show that, at the time of the divorce, they had a real and substantial connection with the foreign jurisdiction, e.g. they were born in that country, had family there, regularly travelled to and spent time there, and/or owned property or conducted business there. Such factors indicate whether the court in that country had the jurisdiction to hear the divorce when neither of the parties was ordinarily residing there for a year preceding the divorce. If the real and substantial connection is made, and that party obtains a legal divorce in that country, it is valid in Canada.

It is also possible that a divorce granted by a court in a country where neither spouse was ordinarily resident but that is recognized by a second country (other than Canada), where one or both can show that they had a real and substantial connection to that second country at the time of the divorce, would be valid in Canada.

When neither spouse was ordinarily resident in the foreign jurisdiction for one year immediately preceding the application for the divorce, it is possible that neither the divorce nor any subsequent marriage may be recognized for the purpose of Canadian law. To determine whether a foreign divorce is acceptable, weigh all evidence, including whether the couple were originally from, and were married in the foreign jurisdiction where the divorce was granted.

Jurisprudence pertaining to what constitutes a “real and substantial connection” has been challenged in court. In the absence of fraud, misrepresentation or any other wrongdoing, there is a tendency to defer to the foreign jurisdiction and to recognize foreign divorces as valid. For more information see Lau v. Canada (Citizenship and Immigration), 2009 FC 1089 and Amin v. Canada (Citizenship and Immigration), 2008 FC 168.

 

Sample foreign divorce scenarios and interpretation in the context of Canadian law

An individual marries abroad, immigrates to Canada, and resides here while the spouse remains abroad.

If the Canadian resident or spouse obtains a divorce where the spouse lives, the divorce would be recognized by Canadian law because the spouse is ordinarily resident in the country that grants the divorce.

Both spouses become permanent residents in Canada, and then one spouse takes up permanent residence in another country.

If the Canadian resident goes to the country where the spouse has lived for at least one year to obtain a divorce, it would be valid because the spouse is ordinarily resident in the country that grants the divorce.

Both spouses become permanent residents in Canada, and then six months later the spouses obtain a divorce from their native country’s consulate in Canada, which is considered legal in their native country.

The divorce may not be recognized under Canadian law because neither party was resident in the native country for one year immediately preceding the divorce, unless either can show a real and substantial connection at the time of the divorce.

Both spouses become permanent residents in Canada, then citizens. Several years later, one spouse goes back to their native country and obtains a divorce and remarries. Neither spouse was resident in the native country for a year preceding the divorce, but the spouse who obtained the divorce visited the native country a few times.

The divorce is not recognized under Canadian law because neither party was resident in the native country for the one year immediately preceding the divorce.

Neither party to the divorce was ever resident or domiciled in the country that granted the divorce.

The divorce is not recognized under Canadian law and a subsequent marriage is void unless one or both can show that they had a real and substantial connection to a country other than Canada at the time of the divorce, and the foreign decree would have been recognized as valid in that country. It may be necessary to seek advice from NHQ Immigration Program Guidance Branch. Similarly, if both parties continue to reside in Canada and obtain a “mail order” divorce in a foreign country, without any real and substantial connection to that country or to another that would recognize the decree, the divorce is not recognized in Canada.

When doubt exists about the validity of a foreign marriage or divorce, refer the matter to the Immigration Program Guidance Branch. When making an enquiry, provide detailed information about the facts of the case including, if possible, a copy of the court judgment. Applicants may seek a ruling on the legal validity of the foreign divorce from Canadian courts.