The challenges of same-sex marriage and divorce for Albertans

On behalf of Kirk Montoute Dawson LLP posted in Family Law on Thursday, October 24, 2013.

As one of the first nations in the world to legalize same-sex marriage, Canada attracted hundreds of same-sex couples from across the globe who were seeking marriages. In 2004, Canada became one of the first nations to allow for divorces for gay and lesbian couples, but at the time, little thought was given to the possible family legal issues that could result.

A Toronto lawyer first ran into the complex legal issues when she began handling divorces from nonresident same-sex couples. After same-sex marriage was legalized, Canada’s Divorce Act wasn’t changed to handle the number of marriages of nonresidents. The legislation states that at least one of the partners must be a Canadian resident for a minimum of 12 months before they are permitted to divorce. However, nonresidents are unable to meet that requirement.

The lawyer presented a Charter of Rights and Freedoms challenge in order to grant same-sex couples the right to divorce without meeting the residency requirement. In the summer of 2013, Canada passed the Civil Marriage Act, which gave non-residents the right to divorce despite residency issues if they lived somewhere that did not allow same-sex divorce. Both partners must agree to the divorce unless they have a court order that waives consent.

Experts disagree in their speculations regarding same-sex divorces. While some think that couples are merely formalizing a relationship that was in place for years, others seem to believe that divorce rates for these unions could approach those of their heterosexual counterparts.

With the legalisation of same-sex marriage comes many of the complications of marriage, including divorces. A family lawyer might be able to help couples of any orientation who are ending a marriage as they settle property and child custody matters.

Source:, “First, same-sex marriage. Now, same-sex divorce”, Georgialee Lang, October 16, 2013

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