Does a Marriage in Another Country Count for Property Division in Alberta?
This answer covers the law of Alberta.
Yes, in many cases a marriage from another country still counts when you separate in Alberta. The Family Property Act defines a spouse to include a party to a marriage even if the marriage is void or voidable. Federal law also says a marriage is not void or voidable only because the spouses are of the same sex.
What usually decides the matter is residence. You can apply for a family property order only if both spouses are habitually resident in Alberta, your last joint habitual residence was in Alberta, or, if you never lived together after marrying, you each lived in Alberta at the time of the marriage. If a divorce statement of claim is issued in Alberta, either of you may apply even if those tests are not met. A divorce itself requires that one spouse has been habitually resident in Alberta for at least one year immediately before the proceeding starts.
Proof of the foreign marriage depends on your facts, so confirm with a lawyer. Time limits also matter: a claim based on one-year separation generally must start within 2 years after you separated.
Key takeaways
- The Family Property Act treats a party to a marriage as a spouse even if the marriage is void or voidable.
- You can generally apply only if the Act's residence tests are met, or if a divorce statement of claim is issued in Alberta.
- A divorce in Alberta requires one spouse to have been habitually resident in the province for at least one year immediately before the proceeding starts.
- Time limits can apply, so it is worth getting advice soon after you separate.