Married Abroad, Living in BC: Getting a Divorce Here

Many families in Metro Vancouver were married in India, the Philippines, China, Iran or elsewhere before they moved to BC. When a marriage ends, a common first question is whether a BC court can grant a divorce at all, or whether you have to go back to the country where you married.

In most cases the answer turns on where you live now, not where the wedding took place. The paperwork, though, can be harder than for a marriage registered in BC, and a divorce granted abroad does not always settle things here.

Where you married matters less than where you live

Divorce in Canada is governed by the federal Divorce Act, and the key question is jurisdiction. Under section 3 of the Act, a court in a province can hear a divorce if either spouse has been habitually resident in that province for at least one year immediately before the case is started.

That means a couple who married in Delhi or Manila and have lived in Surrey for several years can usually ask the BC Supreme Court for a divorce. Only one spouse needs to meet the one-year test. If you moved to BC recently, you may need to wait until you have a full year here, or look at whether another province or country is the more appropriate place.

The Department of Justice notes that, as a general rule, only Canadian residents can divorce in Canada, and that a marriage performed outside Canada must be one that is recognized here.

The ground for divorce is the same as for any couple

The only ground for divorce under section 8 of the Divorce Act is breakdown of the marriage. Most people prove it by showing they have lived separate and apart for at least one year before the court decides the case. Adultery and cruelty are also grounds, but they need evidence and are used far less often.

You can start the case before the year of separation is up, but the divorce order itself cannot be granted on the separation ground until it has passed. Our guide on how to get a divorce in BC walks through the general process.

Proving a marriage that took place abroad

Under Rule 4-5(2) of the Supreme Court Family Rules, the first person to file a claim for divorce must file a certificate of the marriage or of registration of the marriage. If you cannot file one yet, the document must explain why and, where it applies, say that the certificate will be filed before the divorce is decided, or explain why filing one is impossible. The registrar must be satisfied with the reasons.

For a foreign marriage, that often means:

• Ordering a certificate from the country of marriage. Legal Aid BC suggests contacting the office that keeps marriage records where you married. This can take time, so start early.
• Getting a certified translation. BC court documents must be in English (French is allowed in Divorce Act proceedings). Legal Aid BC explains that a certificate not in English needs a certified translator, who usually provides an affidavit of translation with the original and translation attached as exhibits.
• Proving the marriage another way. If no certificate can be obtained, the marriage may need to be proved by other evidence, such as an affidavit from someone who attended or performed the ceremony.

When your spouse still lives overseas

A BC divorce case can go ahead even if your spouse lives in another country, provided you meet the residence rule. The practical hurdles are serving the court documents properly abroad and dealing with a spouse who does not respond. Service rules depend on the country, and some countries have formal requirements for how foreign court documents are delivered.

If your spouse cannot be found, or will not cooperate, see our article on divorce when a spouse won't sign or can't be found. Where documents need to be signed in front of an official overseas, our guide to signing BC documents from outside Canada may help.

Already divorced abroad? When Canada recognizes it

Some people separate and obtain a divorce in their country of origin, then move to BC. Section 22(1) of the Divorce Act says a divorce granted by a competent authority will be recognized for determining marital status in Canada if either former spouse was habitually resident in that country for at least one year before the divorce proceedings started. Section 22(3) preserves other legal rules on recognition, so a divorce outside that test is not automatically rejected, but it may need closer review.

Recognition questions come up most often with divorces that were granted quickly after a move, divorces where the other spouse had no notice, and some religious or administrative divorces. If you plan to remarry, sponsor a new spouse, or rely on the foreign divorce in a property or support dispute, get advice on whether it will be accepted here.

Divorce is only part of the picture

A divorce ends the marriage. Parenting arrangements, child support, spousal support and the division of property and debts are separate issues, and they can be dealt with in the same BC case. Property in another country adds complexity, and an order made in BC may need further steps before it has effect there. Bring a list of assets and debts in every country to your first meeting.

Married abroad and separating? Get the paperwork right from the start

Our family lawyers can review your marriage records and residence history, advise on serving a spouse overseas or on a foreign divorce, and prepare your BC divorce application. Where a document needs to be notarized or certified, our notary team can help with that too.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.