Divorce Act - Same-Sex Divorce

Same-Sex Divorce

Same-sex marriage began to be available in various provinces from 2003 onwards, following a series of court cases which held that same-sex marriage was required by the equality provision of the Canadian Charter of Rights and Freedoms. Shortly thereafter, the question of same-sex divorce arose. Section 2 of the Divorce Act originally read:

"spouse” means either of a man or woman who are married to each other.

This definition of "spouse" meant that the Divorce Act did not provide a means for a same-sex married couple to obtain a divorce. However a judge in Ontario (in September 2004) and a judge in British Columbia (in June 2005) both agreed that this section of the act was discriminatory and granted divorces to same-sex married couples.

In 2005, Parliament passed the Civil Marriage Act, which made same-sex marriage available throughout Canada. That Act also amended the Divorce Act to change the meaning of "spouse", to allow for same-sex divorce. Section 2 of the Divorce Act now defines "spouse" to mean "either of two persons who are married to each other."