Canada’s divorce laws sparked international debate back in 2012 and created a stir among same-sex couples. This was because of the fact that Canada’s Civil Marriage Act did not allow non-resident same-sex couples to obtain a divorce after having exchanged nuptials within Canada. This law in same-sex divorce caused nationwide outrage and several divorce lawyers in Canada received an upsurge of the same searing questions:
Is my marriage valid if I’m gay and will I be able to legally get a divorce?
Although gay and same-sex marriages were made legal in Canada in 2005, the same-sex divorce process, however, did not catch up with Canada’s progressively more forward thinking marriage laws. Because if you were a same-sex couple looking for a divorce in Canada, either you or your spouse had to be a resident of Canada and live in any of the provinces for at least one year, but that all changed in 2013.
How The Civil Marriage Act Changed The Laws For Same-Sex Divorces
In August of 2013, however, the Civil Marriage Act had to undergo alterations which included a “limited exception” for same-sex couples who were originally married in Canada, but relocated to another country and later discovered that they could not divorce in that country. This could be due to the fact that the current country or state that they reside in did not recognize same sex, gay or LGBTQ couples marriage in Canada to be legal.
Therefore, as per the amendment, same-sex couples can apply for a divorce in Canada even if neither one of the spouses live in the country, unlike the previous law which stated that they had to be a resident for one year. But in order to file for same-sex divorce in Canada, the couples will have to obviously meet the law’s criteria. That is, in order to file for divorce, the same-sex couple has to submit documents and prove that their marriage had legally taken place or performed in Canada, and the province that the couple hail from has to recognize that their same-sex marriage as being valid.
What Every Same-Sex Couple Should Know About Divorce In Canada
When compared to straight divorce, same-sex divorces can have unique legal issues that not every couple will be completely aware of. Therefore, if you are actually considering a divorce in Canada, it may be significantly beneficial for you and your spouse to learn more about these legal issues.
There are two ways of legally ending same-sex marriages
Same-sex or gay divorces typically move forward in any one of the two ways; Contested or uncontested. This can be quite similar to straight marriages, because if you and your spouse initially discuss and agree to resolve all marriage dissolution issues, then you can opt for an uncontested divorce. This is the most financially beneficial way to divorce and will not leave a deep hole in your pockets, also it is the simplest form of divorce and would not take a long time. But if disagreements are there between you and your spouse, then the court will help determine the resolution to all these issues and it will be a contested divorce.
Division of assets and debts
Similar to straight divorces, the division of assets and debts can also be quite challenging in gay divorces as well. For same-sex couples who were living together even before marriage became legal in Canada, the date of the marriage may create an unfair property settlement. But other than that rest of the property division and debt division for gay couples are quite similar to normal divorces and includes the fair distribution of the assets.
Child support for gay couples
Child support is a very complicated area of the family law and it can be more complicated in the case of same-sex couples. If you and your gay spouse have a child or children together, then at the time of divorce, the child support will be based on; who has the child or children in their care for more than 40% of the time and it will also be based on both of your incomes.
Spousal support- gay divorce rights
Similar to the division of assets, the issue of spousal support—or, alimony can become complicated in same-sex divorces because the date on which same-sex marriages became legal in Canada will be taken into account. This could significantly impact the spousal support if the gay couple were together for many years even before the laws allowed them to legally marry. Therefore the court usually awards alimony to a spouse based on their financial demands and also their ability to pay, but will use discretion and a variety of other factors before deciding the verdict.
Divorce laws differ based on the provinces
There are multiple unique legal issues that couples should be aware of when it comes to same-sex divorces because each province in Canada regulates its own laws for common law couples and property rights.
For example, in the Canadian province of British Columbia, the Family Law Act has legalized property rights that are identical for both married couples and common law spouses. Therefore, the laws in British Columbia provide gay and lesbian marriages and common law relationships the same rights as heterosexual marriages and common law relationships. These laws are most noticeable when the couple are filing for a separation or divorce. And similarly, each of the provinces has different laws, therefore every same-sex couple must completely understand the law in their province before filing for divorce.
Laws around same-sex marriages and divorces have been considerably modified over the past few years, and it has been changed both rapidly and dramatically. Hence, divorces in Canada that involve same-sex marriages are quite different from straight divorces, and therefore finding the best family lawyer in Brampton to handle your case is absolutely imperative. Therefore, if you are considering for a divorce from your same-sex spouse, it is best recommended that you first make an appointment with a family divorce lawyer.