In B.C., if you have lived together with another person in a marriage-like relationship for a continuous period of at least two years you are considered spouses for the purposes of the Family Law Act. This includes same-sex couples. This means that if you separate, you have the same rights as married people do regarding custody and guardianship of children, child and spousal support, and the division of family assets.
Same-sex marriage has been legal in Canada since 2005 with the passage of the Civil Marriage Act. Along with same-sex marriage came the need for some couples to divorce. In B.C., obtaining a divorce is the same for all couples regardless of sex, and The Family Law Act applies equally to all spouses.
Divorce for non-resident same-sex couples is a somewhat more complicated process. When Canada legalized same-sex marriage, many couples from jurisdictions where gay/lesbian marriage and divorce are not recognized came to Canada to marry. Predictably, some of these marriages foundered and couples wanted to divorce. The problem was, under the Divorce Act, one spouse had to be resident in Canada for at least one year. As of 2013, Canada amended the Civil Marriage Act to include a divorce process for same-sex couples who married in Canada but don’t live here. The specific legal steps you need to take in B.C. are detailed in this directive for non-resident same-sex couples to obtain a divorce through the Supreme Court of British Columbia.
If you are seeking a non-resident same-sex divorce, I strongly recommend you talk to a lawyer. Relief under the Divorce Act or B.C.’s Family Law Act on issues such as parenting, division of property, and child and spousal support do not apply to you.
Marriage or Cohabitation Agreements
Since this guide is about divorce, it might seem strange to talk about what are commonly known as a prenuptial agreements. These are legal contracts between spouses in which they agree as to how assets will be divided in the event of separation. For common-law relationships they are called cohabitation agreements.
Marriage agreements are particularly important to consider if you are considering a second marriage, or where one spouse is bringing substantially more assets to the relationship. Even the idea of a prenuptial agreement can cause tensions in a relationship. After all, marriage is supposed to be about love, respect and trust. Believe me, it’s an idea worth broaching. When my second marriage foundered, having a marriage agreement with my spouse made our no-contest divorce a breeze.
Your spouse and you should each talk to a lawyer if you want to make a marriage or cohabitation agreement. The contract you sign has to be substantially fair to both parties, or else it can be challenged and potentially overturned in court.