Sunday, 14 October 2012
Q: We were married at a resort in Mexico, but have always lived in Canada. We’ve separated and now we want a divorce. Where do we file divorce papers?
If you live in Canada, you should start divorce proceedings in the province in which you live, regardless of where you were married. To be able to file papers in your province, you will have to have been living there for at least one year prior to starting the divorce process. If you have recently moved to a province, and haven’t yet lived there for one year, you will have to wait to file divorce documents. Otherwise, the court in your new province will not legally have jurisdiction over your divorce proceeding. If you travel, or spend time in a few different provinces, the appropriate province for starting the action will be the one in which you mostly, or ordinarily, lived and consider to be your home.
You are your spouse do not both need to live in the same province to start divorce proceedings. Often, people will be living in a different province from their spouse when a divorce action is started. In that situation, either spouse may start the process from within the province in which he or she has been living for at least the past year.
For example, Casey and Rory met each other in a running group in Calgary, Alberta. They wanted a destination wedding and were married in a beautiful ceremony on the beach in Mexico. After the wedding, they continued to live in Calgary until they experienced marital difficulties two years ago, when Rory moved to Vancouver. Now, Casey wants to start the divorce process. Casey, having lived in Alberta for many years, must file divorce documents in Alberta. Rory, on the other hand, having lived in British Columbia for the past two years, would have to file divorce documents in British Columbia. If both Casey and Rory each file divorce documents in the two different provinces, only one action will be allowed to continue. Generally, the action that continues will be the one that was started first.
In Canada, divorce law is governed by a federal law called the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). To read the Divorce Act online, go to Canlii.org .
Please consult with a lawyer in your own jurisdiction to obtain professional advice on how the law applies to your unique situation.
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