The Divorce Act is the federal Act that governs divorce in Canada. The Constitution of Canada gives the federal Parliament exclusive jurisdiction to regulate the law of marriage and divorce.
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History of divorce law in Canada
There was no uniform federal divorce law in Canada until 1968. Instead, there was a patch-work of divorce laws in the different provinces, depending on the laws in force in each province at the time it joined Confederation:
- In the three Maritime provinces, divorce was governed by laws enacted by the colonial governments prior to Confederation in 1867 (in Nova Scotia from 1758, in New Brunswick from 1791, and in Prince Edward Island from 1833);
- In the three prairie provinces and the northern territories, divorce was available under the English Matrimonial Causes Act 1857, which was incorporated into their local law in 1870 under the terms of the Rupert's Land Act 1868;
- In 1867, the Colony of British Columbia had declared that the laws of England, as they stood at November 19, 1858, were to apply "so far as they are not from local circumstances inapplicable", and this declaration was later held to have included the 1857 UK Act as it stood at that time; Until 1937, there was no right of appeal from a BC divorce proceeding.
- In Quebec, the Civil Code of Lower Canada declared that "Marriage can only be dissolved by the natural death of one of the parties; while both live it is indissoluble." Newfoundland never enacted a divorce law, and the local courts did not even grant judicial separations until 1948. The only way for an individual to get divorced in these provinces--as well as in cases where the domicile of the parties was unclear--was to apply to the federal Parliament for a private bill of divorce. These bills were primarily handled by the Canadian Senate where a special committee would undertake an investigation of a request for a divorce. If the committee found that the request had merit, the marriage would be dissolved by an Act of Parliament.
- In Ontario, divorce was not available (although several efforts had been made prior to Confederation to bring it about), and individuals seeking a divorce also had to apply to Parliament for a private bill of divorce. In 1930, Parliament passed the Divorce Act (Ontario), which authorised divorces and annulments to be pursued in the courts of Ontario for Ontario residents according to the law of England as it stood at July 15, 1870 (and thus on the same footing as the prairie provinces and the territories).
Ontario and Quebec residents could attempt to obtain a divorce in the United States, but the validity of such decrees could be subject to review in the Canadian courts on the issue of domicile. In 1885, the Supreme Court of Canada ruled that a New York divorce was valid, even though the husband was living in Montreal, as "the burden was on the husband of showing that he had actually changed his domicile animo et de facto". The consequences where a divorce was not recognized (eg, it was obtained in a divorce mill, such as Reno, Nevada once was) and where one of the parties had already remarried proved to be awkward in certain cases.
The UK Act provided that a husband could sue on grounds of adultery, but a wife would have to allege adultery together with other grounds. In 1925, Parliament provided that a wife could sue on grounds of simple adultery.
In 1930, Parliament extended relief to deserted wives, by providing that, in the provinces where divorce was available, they could pursue proceedings on the grounds of desertion, so long as there had been separation from the husband for at least two years. In 1963, provision was made for the Senate of Canada to be able to dispose of parliamentary divorce petitions by way of resolution instead of by a private Act.
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Reform of the law
1968 Act
In 1968, Parliament passed its first Divorce Act, which established a uniform divorce law across Canada. In addition to bringing about uniformity, the 1968 Act:
1986 Act
In 1986, Parliament replaced the Act, which simplified the law of divorce further. It brought forth several significant changes:
Later amendments
Religious divorce (1990)
While divorce is a civil matter in Canadian law, lobbying from Jewish women's groups such as the Canadian Coalition of Jewish Women for the Gett served to highlight the problem of agunah in Canada, and the connected problem of obtaining a get in the Jewish rabbinical courts. The Act was amended in 1990 to provide that:
There are still certain complications arising from the application of this provision. In one Quebec case, the Supreme Court of Canada ruled that an agreement by divorcing parties, providing that the ex-husband would proceed forthwith to obtain a get, provided grounds for the ex-wife being able to obtain damages as a result of him reneging on it.
Same-sex marriage and divorce (2005)
During the period 2001-2005, same-sex marriage began to be available as a result a series of court cases in almost all provincial and territorial courts, which held that same-sex marriage was required by Section 15 of the Canadian Charter of Rights and Freedoms. In 2004, the Supreme Court of Canada held in the Reference re Same-Sex Marriage that such marriages were within the exclusive legislative authority of the Parliament of Canada, but declined to address the s.15 argument.
In 2005, Parliament passed the Civil Marriage Act, which made same-sex marriage the law throughout Canada, and also amended the Divorce Act to change its corresponding meaning of "spouse" to mean "either of two persons who are married to each other."
Later Canadian and foreign court proceedings revealed complications arising from the application of private international law, so that, while same-sex marriages solemnized in Canada may be legal when its jurisdiction, they must also be valid according to the rules of domicile that apply to the celebrants. As well, the Divorce Act's one-year residence requirement resulted in Canadian divorces not being able to be granted to spouses who are both non-resident. The CMA was amended in 2013 to provide for a separate divorce process to be available, outside the Divorce Act, to nonresident spouses in the province where the marriage took place, and such divorces have immediate effect.
Source of the article : Wikipedia
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