Divorce Jurisdiction and Residency Requirements in Canada
Introduction
Navigating the complexities of divorce law can be challenging, especially when it pertains to residency requirements. In Canada, divorce falls under federal jurisdiction and is governed by the Divorce Act. However, there are specific requirements and exceptions to these rules that one needs to be aware of.
Jurisdiction for Divorce and Residency Requirements
Divorce in Canada is regulated by the federal government under the Divorce Act. For a court to have jurisdiction over a divorce proceeding, either spouse must have been an ordinary resident within the province for at least one year prior to the commencement of the proceeding.
Determining ordinary residence is a fact-finding endeavor, focusing on whether the person is more than a casual resident.
Even if an individual is temporarily residing in a different jurisdiction for employment purposes, they could still be considered an ordinary resident in a province.
Exception to the Residency Requirement
There is a limited exception to the requirement that at least one spouse be resident in Canada to obtain a divorce. This exception is specified in the Civil Marriage Act. To qualify for this exception, the parties must have married in Canada and be unable to dissolve the marriage in the country where either spouse lives because that country does not recognize their Canadian marriage.
Non-Resident Divorce
Recent amendments to the Civil Marriage Act have enabled Canadian courts to grant a divorce to non-resident spouses who were married in Canada but currently reside in a state that does not recognize their marriage. To start the process, a divorce application must be filed either jointly or by one spouse with the consent of the other. Once the application is received by the courts in the province where the marriage was performed, a divorce order will be granted if certain criteria are met, including a breakdown in the marriage established by the spouses living apart for at least one year prior to the application.
Conclusion
Understanding the nuances of divorce jurisdiction and residency requirements in Canada can be crucial when navigating through a divorce proceeding. Whether you're a Canadian resident or a non-resident who was married in Canada, understanding these laws can help you make informed decisions about your divorce proceedings. Remember, it's always a good idea to consult with a legal professional when dealing with matters of family law.
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