We Weren’t Married in Canada. Can We Get a Divorce here?

Although divorce is always difficult, the process of getting a divorce in Canada is relatively simple. It is possible to get a divorce in Canada if you are a Canadian citizen or a resident. In some cases you can even get a divorce as a non-resident.

Getting a divorce in Canada only applies to married couples. Common-law couples cannot get a divorce, and the federal Divorce Act does not apply to them. But provincial or territorial laws regarding child custody and access and spousal support apply to them.

The process of getting a divorce in Canada is theoretically simple, but family law is complex. Most divorces are not uncontested. To ensure that you understand the law and your rights are protected, it is always advisable to get help from a lawyer for your divorce. An experienced divorce lawyer can help with separation agreements and alternative dispute resolution.

Divorce Under The Divorce Act

The only ground for divorce recognized by the Divorce Act is marriage breakdown. You can show that your marriage has broken down in one of three ways:

• If you and your spouse have lived separate and apart for at least one year
• If your spouse has been mentally or physically cruel to you
• If your spouse has committed adultery

The first way is called “no-fault” divorce. This means that you can get a divorce without showing that your spouse has done anything wrong. With a no-fault divorce, you do not have to have evidence of wrongdoing. However, you do have to wait a year.

Living separate and apart does not always have to mean that you and your spouse have lived at separate addresses. It may be possible to fulfill this requirement even though you have lived under the same roof. Your lawyer can advise you how courts determine if a couple is separated.

The Divorce Act is a federal law. It sets out rules about such things as child custody and access, child support and spousal support. Other matters related to divorce, however, fall under provincial or territorial law. This includes division of property.

Provinces and territories are also responsible for the administration of justice in divorce cases. That means they are responsible for:

• Processing divorce applications
• Making decisions about support and custody

If you are getting a divorce in Canada, the Divorce Act will apply to you. The provinces and territories are responsible for the processing your divorce. To apply for a divorce in Canada you or your lawyer must use the correct forms for your province or territory. You or your lawyer will then file these forms in a court.

If there is any issue that you and your spouse cannot agree on, your divorce becomes a contested divorce. If your marriage is a lengthy one, with children or a large amount of property involved, it is a good idea to obtain a family lawyer to help with your divorce.

A divorce lawyer can help you settle your case before it goes to trial. Or, in the rare case that it does go to trial, protect your rights and interests at that point.

Divorce for Residents

It is not necessary to be a Canadian citizen in order to get a divorce in Canada. Nor is it necessary for you to have married in Canada. Divorcing in Canada is based on your current residency status. You may apply for a divorce in Canada as long as you or your spouse has lived in Canadian province or territory for at least a year immediately before applying for the divorce.

Divorce for Non-Residents

You cannot obtain a divorce under the Divorce Act if neither you nor your spouse live in Canada. However, you may be able to end your marriage under the Civil Marriage Act. But only if you married in Canada and cannot undo your marriage in the country where you or your spouse lives because it does not recognize your Canadian marriage. This is an obvious area of concern for same-sex couples who marry in Canada because they cannot marry in their home country.

To end your marriage under the Civil Marriage Act you must apply to a Superior Court in the province or territory in which you were married.

Don’t be lost in the amount of paperwork, our Toronto Divorce Lawyers and Family Law Lawyers can do the heavy lifting for you.