5.33. Legality of foreign divorces
Visa officers may need to look closely at foreign divorces to determine if sponsors or applicants were, or are, legally free to marry again. The fact that a marriage licence was issued, or that a couple has remarried, is not proof that a divorce was legal where it occurred, or that it would be recognized as legally valid in Canada.
A foreign divorce is without effect if it was obtained by fraud or by denial of natural justice.
The federal Divorce Act of 1985 governs the recognition of foreign divorces. It specifically provides for the recognition of foreign divorces where the divorce was granted after February 13, 1986. These divorces are valid in Canada if either spouse was ordinarily resident in the foreign jurisdiction for one year immediately preceding the application for the divorce.
The Divorce Act also preserves common-law rules respecting recognition of foreign divorces. For example, Canadian courts may recognize foreign divorces when:
they are issued from a court in a country where neither spouse was ordinarily resident, but where the decree is recognized by the law of that country (other than Canada) where one or both were ordinarily resident at the time of the divorce. For example, a party living in California obtains a divorce in Nevada. If California recognizes the Nevada divorce, it is valid in Canada.
either party can show that they had a “real and substantial connection” with the foreign jurisdiction at the time of the divorce. Factors that might indicate whether there was a real and substantial connection would be whether an individual was born in that country, had family there, and regularly travelled there to spend time in the jurisdiction. This could be strengthened further if the individual owned property or conducted business in the jurisdiction. These factors are relevant because they indicate whether the court in that other country had the proper jurisdiction to hear the divorce when neither of the parties was ordinarily residing there for a year preceding the divorce action. If the real and substantial connection is made, and that party obtains a legal divorce in that country, it is valid in Canada.
It is also possible that a divorce, issued by a court in a country where neither spouse was ordinarily resident but that is recognized by a second country (other than Canada) where one or both can show that they had a real and substantial connection to that second country at the time of the divorce, would be valid in Canada. For example, a party now ordinarily resident in Canada obtains a divorce in Nevada but was born in California, still has family there, and regularly travels there to spend significant amounts of time, maintaining a cottage that they inherited. If California legally recognizes the Nevada divorce, it may be valid in Canada, although it may be necessary to seek legal advice from NHQ.
