wedding rings

Marriage and divorce in Canada

By Dara Poizner

Posted on February 22, 2021

wedding rings

This article provides general information about the legal aspects of marriage and divorce in Canada for people who have immigrated or plan to immigrate.

Marriage

In Canada, marriage is a legal process rather than a religious ceremony (although many people who get married also have a religious ceremony). Federal and provincial/territorial governments both make laws about marriage. Marriages that take place in Canada must meet federal and provincial requirements to be considered legal. The federal government is responsible for determining who has the capacity to get married in Canada. Having the “capacity to marry” means having the physical, mental, and legal ability to get married.

Provinces and territories are responsible for rules about the formal marriage ceremony. Each province or territory has a Marriage Act outlining these rules.

General rules about marriage

Marriage ceremonies must be performed by someone with legal authority, and witnesses are needed to validate the ceremony.

One can only be married to one person at a time. People who have been married in the past must divorce before getting married again.

There are minimum age requirements for being married in Canada, determined by the province or territory. People who get married must be at least:

  • 19 years old in British Columbia, Newfoundland and Labrador, Nova Scotia, the Northwest Territories, Nunavut, and the Yukon.
  • 18 years old in Alberta, Manitoba, New Brunswick, Ontario, Quebec, Prince Edward Island, and Saskatchewan.

In some provinces and territories, people can get married as young as 16 if their parents approve it.

People cannot marry their close relatives (biological or adoptive). It is not legal for anyone to marry their parent, child, sibling, half-sibling, grandparent, or grandchild.

If someone is already married in their country of origin

If the marriage was legal in the place where it occurred, and it meets the requirements of Canadian federal law, the government of Canada usually recognizes the foreign marriage. For example, someone who is legally married in Belgium would be considered married in Canada, as long as the marriage follows Canadian federal rules. If the marriage is not legal in the place where it occurred, it will not be recognized by the Canadian government.

Details about how Immigration Refugees and Citizenship Canada (IRCC) evaluates foreign marriages can be found in the document “OP 2 Processing Members of the Family Class.”

Common-law relationships

A common-law partnership is the relationship between a couple who has lived together for at least one full year. Legally, a common-law partnership is established based on the facts of each individual relationship: for example, by evaluating how long the couple has lived together as well as their shared assets. In this way, it is different from a marriage, which is established by law.
Couple moving boxes

Sponsorship

If you are a Canadian citizen or permanent resident who is at least 18 years old, you may be able to sponsor your family members to immigrate to Canada. This includes sponsoring a spouse or partner. There are several guidelines about who is eligible to sponsor and be sponsored, which you can review on the IRCC website. For a sponsorship application to be recognized, your spouse or partner must also be at least 18 years old.

For more information on sponsoring a common-law partner, visit the IRCC page on assessing a common-law relationship for immigration purposes.

Divorce

Laws about divorce are federal, which means that they are the same throughout Canada. They are outlined in the Divorce Act.

Generally, you must meet these criteria to get a divorce in Canada:

  • Your marriage is recognized in Canada.
  • The relationship has broken down, and you do not believe you will get back together.
  • You or your spouse have lived in the province or territory where you will be applying for divorce for at least a full year before applying.

While the federal government created the Divorce Act, provinces and territories are responsible for the divorce process. You must fill out the forms for divorce at the provincial or territorial court where you live.

You cannot divorce under the Divorce Act if neither you nor your spouse lives in Canada. However, you may be able to end the marriage using the Civil Marriage Act if:

  • You married in Canada but live outside of Canada, and;
  • The country where you and/or your spouse live does not recognize your Canadian marriage.

Grounds for divorce

The only requirement for divorce in Canada is that the marriage has broken down. According to the Divorce Act, any of these criteria can be proof of a breakdown:

  • You and your spouse have been living apart for at least one year. (In some cases, spouses still live together after deciding to separate, and courts will consider other factors to determine if they are separated.)
  • Your spouse has been physically or mentally cruel to you.
  • Your spouse has committed adultery.

Divorce and immigration status

According to the Ontario newcomer information website Settlement.Org, if you are a citizen or permanent resident of Canada, you usually will not lose your immigration status because your relationship has ended (there are some exceptions for permanent residents). If you have been granted refugee status, you will not lose your status.

Sponsors are financially responsible for the spouse they sponsored for three years after arriving in Canada, even if the relationship ends.

If you are with an abusive spouse or partner and worried that you will lose your immigration status if you leave them, you can get a temporary resident permit (TRP). It will give you a legal immigration status, and you can also get a TRP for your children if they are in Canada. In cases of family violence, there is no initial fee for a TRP.

Legal assistance

When dealing with matters of marriage or divorce, you may need legal information or services, including advice about how these issues relate to immigration or sponsorship. For example:

  • If you need to check that your foreign marriage or divorce is legal in Canada
  • If you are a refugee claimant who is separated from your spouse, and your claim is based on your spouse’s situation
  • If your sponsorship has broken down, and you do not have a permanent resident status

If you cannot afford a lawyer, legal aid programs in each province and territory provide legal services to eligible people with low income. This article has information about accessing legal aid and other community resources.
signing papers

If you are planning to apply for divorce, it is often a good idea to get advice from a lawyer who can explain your rights and responsibilities and help you with documents and court proceedings. Divorce can be a very complicated process, especially when it comes to major issues like child support, custody and parenting, spousal support, and property. If you and your spouse are having trouble making difficult decisions, check the Inventory of Government-Based Family Justice Services to see if your province or territory offers services that may help you.

Sources

https://www.canada.ca/content/dam/ircc/migration/ircc/english/resources/manuals/op/op02-eng.pdf

https://settlement.org/ontario/daily-life/life-events/marriage/will-the-canadian-government-recognize-my-foreign-marriage/

https://settlement.org/ontario/daily-life/life-events/divorce/how-can-i-get-a-divorce-in-ontario/

https://www.justice.gc.ca/eng/fl-df/divorce/app.html#ex

https://www.canada.ca/en/immigration-refugees-citizenship/services/immigrate-canada/family-sponsorship.html

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