Divorce & Property Division if Your Spouse Lives in Another Country: Alberta Family Law

Navigating through a divorce is like walking a tightrope, and when your spouse lives in another country, the rope gets thinner and the stakes higher. You’re not just dealing with Alberta’s family law; you’re also grappling with the legal system of your spouse’s country.

How does this affect your rights, especially when it comes to property division? Are there specific guidelines for such international cases? This article can help you understand your legal standing and what your next steps could be.

Key Takeaways

• Alberta requires a one-year residency for divorce, even with a spouse living in another country.
• International divorces can be complex, requiring an understanding of both Canadian and foreign divorce laws.
• Alberta courts can provide remedies like child support or parenting claims post-foreign divorce, but not corollary relief.
• Alberta’s Family Property Act allows for the fair division of foreign properties and requires full disclosure of all assets.

Recognition of Foreign Divorces

When you’re dealing with a divorce granted in a foreign country, it’s important to understand that Canada generally recognizes these divorces, provided they’ve been granted by competent authorities in the foreign jurisdiction. The Divorce Act stipulates that one spouse must have been a resident in a foreign country for at least one year before the divorce proceedings for it to be recognized in Canada.

Essentially, there exists a presumption of validity for foreign divorces. However, the burden of proving that the divorce is invalid lies on the party making this claim. In rare cases, such as instances of fraud, natural justice, or public policy concerns, Canada may refuse to recognize a foreign divorce.

Case law, like Zeineldin v Elshikh, 2020 ONSC 1160, reiterates the importance of meeting residency requirements for foreign divorces to be recognized in Canada. Therefore, it’s crucial to ensure that all the necessary legal conditions are met to avoid any complications in the recognition of your foreign divorce in Canada.

Limitations on Corollary Relief

While it’s important to understand the recognition of foreign divorces, it’s equally crucial to be aware of the limitations on corollary relief in Canada following a foreign divorce. Corollary relief refers to the orders a court can make in relation to child custody, child and spousal support, and property division when granting a divorce.

The Divorce Act doesn’t allow for corollary relief once a foreign divorce is recognized in Canada. This limitation can affect your ability to seek spousal support in Canada after a foreign divorce but don’t lose heart. You can still pursue child support or parenting claims under provincial legislation, even after a foreign divorce.

Cases like Cheng v Liu, 2017 ONCA 104, underline the inability to grant corollary relief under the Divorce Act after a valid foreign divorce. It’s important to consult a legal professional to navigate these limitations and protect your rights. Remember, every situation is unique and expert advice can guide you in exploring potential family law remedies in Canada following a foreign divorce.

Invalidation of Foreign Divorces

While navigating the complex landscape of international divorce law, you may encounter situations where Canada declares a foreign divorce invalid under certain exceptional circumstances. This generally occurs when the divorce doesn’t meet Canada’s legal requirements, such as residency prerequisites.

However, exceptions exist. In rare cases, if there’s evidence of fraud, natural justice violations, or public policy issues, Canada may refuse to recognize a foreign divorce. Hence, it’s crucial you’re aware of these potential pitfalls.

It’s worth noting that the burden of proof rests on the party asserting the divorce’s invalidity. Therefore, if you’re contesting a foreign divorce’s validity in Canada, you’ll need to provide compelling evidence to support your claim.

Given the complexities involved, seeking legal counsel is paramount when disputing the validity of a foreign divorce in Canada. A seasoned family lawyer can help navigate these challenges, ensuring you’re adequately informed and your rights are protected.

Available Remedies Post-Foreign Divorce

In the aftermath of a foreign divorce, you may explore certain legal remedies in Canadian courts, albeit with certain limitations. While some doors close after divorce, others may still be ajar, offering potential avenues for relief.

Here’s a snapshot of what might be available to you:

• Child support and custody: Even after a foreign divorce, you can still pursue child support and custody claims under provincial laws. Your children’s welfare is paramount, and Canadian courts strive to ensure their best interests.
• Property division: If you own property in Canada, you may be able to seek its division under Alberta law.
• Dispute resolution: You may be able to use Canadian courts or alternative dispute resolution mechanisms to settle any lingering disputes from your foreign divorce.
• Invalidation of a foreign divorce: In rare cases, if you can prove the foreign divorce was obtained fraudulently or against natural justice norms, Canadian courts may declare it invalid.

Alberta’s Divorce Requirements

While you can pursue certain remedies in Canadian courts following a foreign divorce, it’s crucial to understand Alberta’s specific requirements if you’re considering filing for divorce within this province.

Firstly, you or your spouse must have resided in Alberta for at least one year before filing for divorce. This residency requirement is non-negotiable. If neither of you meet this, you’ll be ineligible to file for divorce in Alberta.

Secondly, you should be aware of the legal grounds for divorce. In Alberta, these include living apart for one year, cruelty, or adultery. If you don’t meet these criteria, it may be challenging to obtain a divorce.

Remember, these requirements are just the start. The process can be complex, especially if children or substantial assets are involved. It’s advisable to consult with a lawyer who specializes in international divorce cases, as they can guide you through the process while ensuring your rights are protected.

Lastly, while this information is Alberta-specific, divorce laws vary across Canada. Therefore, if you’re residing in another province or territory, ensure you understand the specific divorce requirements applicable to you.

Equitable Foreign Property Division

Navigating the division of foreign property in a divorce can be complex, but understanding Alberta’s legal provisions can help ensure an equitable outcome. If you and your spouse have properties outside of Alberta, it’s essential to comprehend how these assets will be divided.

Alberta’s Family Property Act provides a framework for a fair division of assets, including those located in foreign countries. Here are some key considerations:

• Canadian courts now have jurisdiction over foreign properties during the division process.
• Full disclosure of all properties, regardless of their location, is mandatory under Section 31 of the Act.
• Rental income from foreign properties is taken into account during the division.
• While Alberta courts can’t directly rule on the division of foreign property, they can issue orders requiring owners to take certain actions or provide compensation.

Frequently Asked Questions

What Are the Steps to Initiate a Divorce When Your Spouse Lives Abroad?

To initiate a divorce when your spouse lives abroad, consult a family lawyer experienced in international cases first. You’ll need to establish grounds for divorce under Alberta law and ensure you’ve lived in Alberta for at least a year.

Next, file a Statement of Claim for Divorce. Serving divorce papers to your overseas spouse may be complex, so seek professional advice. Remember, different jurisdictions can impact property division and child custody.

How Can One Serve Divorce Papers to a Spouse Residing in Another Country?

You can serve divorce papers to a spouse residing abroad by using international registered mail or a professional process server. However, you’ll need to check the specific requirements of the country where they live. Some countries have specific rules for receiving foreign legal documents.

It’s also essential to obtain proof of service. Consulting a lawyer experienced in international divorce can help guide you through this process.

What Are the Implications of a Spouse Living Abroad on Child Custody and Visitation Rights?

If your spouse lives abroad, it can complicate child custody and visitation rights. You’ll need to consider international laws and treaties like the Hague Convention.

It’s also important to figure out jurisdiction, as courts typically have authority in the child’s habitual residence. Visitation might involve extensive travel or virtual visits.

To navigate these complexities, consulting with a family lawyer experienced in international custody disputes is crucial.

How Can One Enforce a Canadian Court’s Child Support or Spousal Support Order if the Spouse Resides in Another Country?

Enforcing a Canadian court’s child or spousal support order when your spouse lives abroad can be challenging. You’ll need to familiarize yourself with the laws of the foreign country. Many countries have reciprocal agreements with Canada for enforcing support orders.

Consider hiring a lawyer in a foreign country to help enforce the order. Remember, each case is unique, and you should seek legal advice tailored to your situation.

In Case of Disagreement, How Can the Value of Foreign Properties Be Determined for the Purpose of Property Division in Alberta?

If there’s disagreement over the value of foreign properties in a divorce, you’d typically hire a professional appraiser familiar with the property’s location. They’d evaluate the property considering the local real estate market.

Remember to include all costs, like taxes and fees, in the final value. It’s best to consult with a family lawyer to ensure a fair and accurate property division.

Conclusion

Navigating an international divorce can be daunting, but understanding Alberta’s family laws can empower you.

Even if your spouse resides overseas, you can still seek remedies in Canadian courts, including child support and property division. Remember, Alberta has specific divorce requirements that must be met.

Although jurisdictional constraints exist, there are pathways to recognizing or invalidating foreign divorces.

You’re not alone in this journey, and with the right knowledge, you can confidently face the future.

References

Divorce Act, RSC 1985, c 3 (2nd Supp)
https://www.canlii.org/en/ca/laws/stat/rsc-1985-c-3-2nd-supp/217867/rsc-1985-c-3-2nd-supp.html

Zeineldin v Elshikh, 2020 ONSC 1160
https://www.canlii.org/en/on/onsc/doc/2020/2020onsc1160/2020onsc1160.html

Cheung v Liu, 2017 ONCA 104
https://www.canlii.org/en/on/onca/doc/2017/2017onca104/2017onca104.html

Government of Alberta, “Get a divorce” online: <https://www.alberta.ca/get-a-divorce>

Family Property Act, RSA 2000, c F-4.7
https://www.canlii.org/en/ab/laws/stat/rsa-2000-c-f-4.7/214898/rsa-2000-c-f-4.7.html

Chikonyora v Chikonyora, 2013 ABCA 320
https://www.canlii.org/en/ab/abca/doc/2013/2013abca320/2013abca320.html

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