Introduction: Family law deals with one of the most important aspects in our lives. Once a family law issue arises, the situation is often difficult to navigate. Especially for many immigrants, the lack of familiarity with the Canadian society and the legal system can add to the challenges. In addition, when people do their own research on family law, it is hard to get a full picture, and misunderstanding is not uncommon. Therefore, clarification of common "myths" about what the law actually says is self-evidently important for handling family law matters and protecting one's own interests. Henderson & Lee Law Corporation is producing a series of introductive articles to debunk some common myths we discovered while serving our clients.
Myth 1: A married couple can divorce right away as long as they have been separated for one year
Facts:
Just like a marriage has to be registered with the government, a divorce is subject to the approval by the Supreme Court of BC. A married couple do not divorce automatically after one year of separation, nor can they divorce without applying to the Court.
According to the divorce law, a one-year separation is generally sufficient for proving a breakdown of the relationship, and thus, supporting a divorce order. However, divorce can be more complicated when there is a child of the marriage – the court will only grant a divorce after it has been satisfied that the parties have made reasonable arrangements for the child. This generally means that both parties adhere to the federal guidelines for child support payment, whether by agreement or by court order. A deviation from the table amount can only be justified by strong reasons. From a practical point of view, if there remains a dispute involving the basics of a child of the marriage, the possibility of obtaining a divorce right away is very low.
On the other hand, according to the case law in BC, if the parties to the marriage have no child of marriage and have been separated for more than one year, the court will almost certainly grant a divorce on application. Even if the other party refuses to divorce, such as for religious reasons, such contest usually cannot change the outcome.
Myth 2: Divorce in BC is only possible if both parties are married in Canada or one of the parties is a citizen/permanent resident
Facts:
With a few exceptions (e.g., same-sex marriage, religious marriage), the validity of marriage (and divorce) in one country is widely recognized in others. Therefore, whether or not one can apply for divorce in BC usually does not depend on the location of the marriage or the parties' legal status in Canada. Generally speaking, the spouses can get divorced in BC as long as one party has been living here habitually for at least one year at the start of the court procedure.
It is worth noting that even if a couple can apply for divorce in BC, that doesn't mean BC is necessarily the best place to apply – with divorce, there also comes with other issues, such as those related to property or children. In some cases, the courts of another province, territory, or even country may also have the jurisdiction. In such a case, it is necessary to consider various factors to determine which court will be in the best position to deal with those matters. Relevant factors may include whether the parties have signed any agreement, the principal residence of the parties before and after the separation, the location of the family property, the principal residence of minor children, etc. There is no one-off way to determine which jurisdiction is the best to proceed with your divorce, and a decision has to be made on a case-by-case basis. Seeking legal advice in advance can be very important and helpful for planning.