Same-sex Marriage in Canada - Same-sex Divorce in Canada

Same-sex Divorce in Canada

A married couple (gay or straight) can only file for divorce in Canada if at least one spouse is then residing in Canada and has been for at least one full (continuous) year when the divorce is filed. Therefore, if a couple comes to Canada with the sole purpose of marrying there, they will not be able to obtain a divorce from a Canadian court in the future unless one spouse has been a 'regular resident' of Canada for one continuous year when the divorce is filed. If neither spouse resides in Canada, they will have to obtain a divorce in a jurisdiction where one of them resides.

In 2012, after the submission of a legal opinion by a Government of Canada lawyer suggesting that non-residents of Canada cannot have valid marriages if they do not have the capacity for marriage in their home jurisdictions, the Conservative government announced that they would alter what they consider to be a "legislative gap".

On September 13, 2004, a lesbian couple known as "M.M." and "J.H." in Ontario were granted Canada's first same-sex divorce. Their initial divorce application had been denied based on the fact that the federal Divorce Act defines spouse as "either of a man or a woman who are married to each other". However, Madam Justice Ruth Mesbur of the Ontario Superior Court of Justice ruled that the definition of "spouse" in the Divorce Act was unconstitutional.

In June 2005, a lesbian couple in British Columbia, whose names cannot be released, obtained a similar ruling.

Bloc Québécois MP Richard Marceau, who has advocated in favour of same-sex marriage, requested that Justice Minister Irwin Cotler add a provision to the same-sex marriage bill altering the Divorce Act to permit same-sex divorce. Section 8 of the Civil Marriage Act amended the Divorce Act to permit same-sex divorce.