Need your Opinion

As I said, best to talk to a lawyer about this. It is apparent you need a specific opinion about your particular case, not about general principles or practices. For that you really should talk to a lawyer.

For you to remarry in Canada, for example, at least some provinces will require a . . . I forget the formal term, but some kind of document in essence authenticating the foreign divorce. It is a relatively simple thing to obtain (but of course costs money), but the first step in doing that is to take copies of the papers you have from the court in India and show them to a Canadian lawyer.

I think (well, I am quite sure) that PMM continues to be wrong about the validity of a divorce in India being recognized generally in Canada . . . and as I have said a couple times now, I think it is primarily dependent on one or the other being a resident of the jurisdiction which issues the divorce and is not dependent on who initiated the divorce . . . in other words, I highly doubt that the person who initiates the divorce must be the resident for purposes of Canada recognizing the divorce.

But overall and foremost, the divorce must be a legally recognized as a binding decree in the jurisdiction where it was issued and this is where I have no clue about India or its laws, relative to domestic relations or otherwise. Again, talk to a lawyer about your particular circumstances.

Generally, though, so long as the certificate of divorce from India is based on jurisdiction of both of you, was issued by the jurisdiction in which he was a resident (for a year at least), and is valid and enforceable in India, I think it should be recognized in Canada even if you initiated the proceedings. But again, again, again, since you are asking if your divorce is valid and recognized, you really need to consult with a licensed attorney who can look at your documents.

PMM --

Ah but the exception is the person who is initiating the divorce action resides in Canada not India, that is where Section 22 of the Divorce Act will come into play.

Ah nothing. There is no exception. There is simply the requirements for recognizing a divorce granted by a foreign country or subdivision, which are primarily elements of basic jurisdiction, pursuant to principles common to comity among many nations. Section 22 of the Act is consistent with this. It is pretty straightforward: "if either former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for the divorce." Note, it does not say anything akin to "if the initiating party was resident . . . "

There are, nonetheless, other aspects of decrees which must comply with other provisions of the act in order to be enforceable in Canada, relating especially to dispositions affecting children and their support, none of which is at play in the query posed here.





Edited by dpenabill - 23 Aug 2010 at 2:04am

Hi

dpenabill wrote: Exactly what I expected but was not so sure of: if he is a resident of India, and the divorce in India is otherwise legal, the divorce will be recognized in Canada even though she is a resident of Canada. To be clear: PMM (first post): 1. As you are not resident in India, a divorce in India would not be recognized in Canada. Foreign marriages are not registered in Canada. PMM (quoting the law itself: A divorce granted, on or after the coming into force of this Act, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so shall be recognized for all purposes of determining the marital status in Canada of any person, if EITHER former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for the divorce. The first was wrong (I was not sure but thought so, as I said.) Just because she is a resident of Canada does not mean a divorce in India would not be recognized in Canada -- rather (as so often) it depends, as I said: From my post: . . . if one of the parties to the marriage is a resident that is sufficient. That is, if the divorce is decreed by a court in the jurisdiction where your husband lives, that should be recognized in Canada (and everywhere else for that matter . . . and in Canada regardless of where you are a resident). (again, emphasis added)

Ah but the exception is the person who is initiating the divorce action resides in Canada not India, that is where Section 22 of the Divorce Act will come into play.

Hi

dpenabill wrote: I do not have a clue about the legalities of obtaining a divorce in India. That, of course, is a matter of Indian law. As a resident of Canada, a Canadian court, in the Province in which you permanently reside, will have jurisdiction to grant you a divorce so long as, of course, you meet all the requisites. Whether or not that divorce is subsequently recognized in India depends on the law of India, and it may depend on whether or not proper personal jurisdiction was obtained over your husband. You need to discuss this with a lawyer at least somewhat familiar with Indian law as to domestic relations, and I believe there are many such lawyers in Canada. PMM may be right that a divorce in India would not be recognized in Canada since you are not a resident of India, but I doubt that is correct. As in most things, I believe it depends. Whether or not Canada will recognize a foreign divorce depends foremost on whether the foreign court had legitimate jurisdiction. So while I do not know about India in particular, relative to most countries, if one of the parties to the marriage is a resident that is sufficient. That is, if the divorce is decreed by a court in the jurisdiction where your husband lives, that should be recognized in Canada (and everywhere else for that matter . . . and in Canada regardless of where you are a resident). Note, for example, if proper personal jurisdiction is obtained in the proceedings, it would be inconsistent for Canada to expect India to recognize a divorce decreed in Canada (as to him as well as you) but in turn Canada be unwilling to recognize a divorce in the country where he lives because you are not a resident there. It gets more complicated than that in practice, though, which is why you really need to see a lawyer to do this. Jurisdiction can be imperfect in such cases, and thus the decree can have limited force and effect, unless both subject matter jurisdiction (that would be over the "marriage" itself, which in most but not all countries requires one of the parties to be a resident) and jurisdiction over both persons is clearly established. It can be difficult for a Canadian court to actually obtain personal jurisdiction over an unwilling person living abroad. So you can end up with a divorce that is effective in some regards but not others. Again, it is important to see a lawyer in this situation.

1. You may wish to read the Divorce of Canada, especially Section 22

22. (1) A divorce granted, on or after the coming into force of this Act, pursuant to a law of a country or subdivision of a country other than Canada by a tribunal or other authority having jurisdiction to do so shall be recognized for all purposes of determining the marital status in Canada of any person, if either former spouse was ordinarily resident in that country or subdivision for at least one year immediately preceding the commencement of proceedings for the divorce.

Note the 1 year.

2. From CanLII Immigration Appeal Division

To win the appeal, the appellant must establish that the applicant or his former spouse was ordinarily resident in Lebanon for the year immediately preceding the commencement of the divorce proceedings, in accordance with subsection 22(1) of the Divorce Act.

You may wish to search CANLII with "divorce residence and connection

Hi

DivorceQuestion wrote: <P =Msonormal style="MARGIN: 0cm 0cm 0pt"><SPAN style="FONT-SIZE: 12pt; FONT-FAMILY: 'Times New Roman','serif'; mso-fareast-font-family: 'Times New Roman'; mso-fareast-: EN-CA">I am a Indian Citizen now in Canada as a Permanent Resident from 2005. I got married in 2009 in India under Hindu Marriage Act, and have India Marriage certificate from India. The marriage was registered in India only, but I used that Indian Marriage Certificate here in Canada once I sponsored My husband under spouse category. My marriage was never registered In Canada, but one of my friend said it was automatically registered once you sponsored your suppose here. No idea what to do and from where to start. For the time being He is in India and things are not working out good between us. Do i have to take divorce in Canada and India or just in India? <?: prefix = o ns = "urn:schemas-microsoft-com:office:office" /><o:p></o:p></SPAN> <P =Msonormal style="MARGIN: 0cm 0cm 0pt"><SPAN style="FONT-SIZE: 12pt; FONT-FAMILY: 'Times New Roman','serif'; mso-fareast-font-family: 'Times New Roman'; mso-fareast-: EN-CA"><o:p> </o:p></SPAN> <P =Msonormal style="MARGIN: 0cm 0cm 0pt"><SPAN style="FONT-SIZE: 12pt; FONT-FAMILY: 'Times New Roman','serif'; mso-fareast-font-family: 'Times New Roman'; mso-fareast-: EN-CA">1.If i get divorce in India is it valid in Canada?<o:p></o:p></SPAN> <P =Msonormal style="MARGIN: 0cm 0cm 0pt"><SPAN style="FONT-SIZE: 12pt; FONT-FAMILY: 'Times New Roman','serif'; mso-fareast-font-family: 'Times New Roman'; mso-fareast-: EN-CA">2.If i get divorce in Canada is it valid in India? Very Confused <o:p></o:p></SPAN>

1. As you are not resident in India, a divorce in India would not be recognized in Canada. Foreign marriages are not registered in Canada.
2. If you are divorced in Canada, where you reside, it would be recognized in India.