Canada Scraps Residency Requirement For Same-Sex Divorce

OTTAWA – Amendments to the federal Civil Marriage Act effective Aug. 14 provide a process for a Canadian court to grant a divorce to non-resident spouses who were married in Canada, and reside in a state that does not recognize their marriage. Prior to this legislation a married couple could divorce in Canada only if at least one spouse resided in Canada for at least one full, continuous year.
Same-sex marriage was legalized in Canada in 2005, and since then thousands of U.S. couples have gone north to become legally married, including Edie Windsor and Thea Spyer. Windsor was the plaintiff in the recent U.S. Supreme Court case that struck down key parts of the federal Defense of Marriage Act, U.S. v Windsor.
This new, easier divorce mechanism for same-sex couples will come as a relief to those couples that got married in Canada but have since split apart. Until now there has been no way to dissolve their marriage unless one of the spouses resided in Canada for a full year. For those people who live in states where marriage is not recognized, such as Michigan, the inability to divorce caused few tangible problems. But that has changed dramatically with the Windsor decision and a new ruling by the U.S. Treasury Dept. that same-sex marriages performed anywhere will be recognized in all 50 states for federal purposes, including federal income taxes.
Civil Marriage Act divorce applications in Ontario will be accepted at any family counter of the Superior Court of Justice. Divorce applications under the Civil Marriage Act must be filed either jointly or by one spouse with the consent of the other spouse, in the province where the parties were married.