- A divorce granted outside Canada by a competent authority is recognized if either former spouse was habitually resident in that country for at least one year before the proceedings started.
- Other rules of law on recognizing foreign divorces still apply, so a divorce that misses this test is not automatically invalid.
- If your foreign divorce is not recognized, you may still be married in Ontario and a lawyer can explain your options.
If you were divorced overseas and now live in Ontario, you may need to know whether Canada treats you as divorced. It can affect remarriage, immigration paperwork, wills, pensions and property.
This article explains the main recognition test in the Divorce Act, why the answer matters, and what to do if your foreign divorce may not be recognized. Foreign divorces vary widely, so the specific papers and country involved are worth reviewing with a lawyer.
The basic recognition test
Under the Divorce Act, a divorce granted outside Canada by a competent authority is recognized in Canada if either former spouse was habitually resident in that country or subdivision for at least one year immediately before the divorce proceedings started.
Two points stand out. First, only one spouse needs to have met the residence period in the place that granted the divorce. Second, the Act says other rules of law on recognizing foreign divorces still apply. That means a divorce that does not fit the one-year test may still be recognized on another basis, but that depends on the facts and the law that applies.
| Question | Why it matters |
|---|---|
| Was the divorce granted by a competent authority? | The test applies to divorces granted outside Canada by a competent authority |
| Was either spouse resident there for a year before it started? | One year of habitual residence by either former spouse meets the main test |
| Does it fit the main test? | If not, other recognition rules may still apply |
Why recognition matters
Only legally married couples can divorce, and a divorce is a court order officially ending a valid marriage. If your foreign divorce is recognized, you are generally treated as no longer married. If it is not, Ontario may still treat the marriage as continuing.
- Remarriage: no one may marry until every previous marriage has been dissolved.
- Wills: unless the will shows a contrary intention, a divorce made after a will is signed revokes gifts to the former spouse and their appointment as executor or trustee, and the will is read as if the former spouse died first.
- Property: on separation or divorce, the spouse with the smaller net family property is entitled to one-half of the difference between the two spouses' net family properties.
- Pensions and RRSPs: these are counted as property, and special rules govern transfers.
Property and time limits after a foreign divorce
A foreign divorce does not necessarily settle Ontario property questions. The Family Law Act sets time limits for an equalization claim: the earliest of two years after a divorce or nullity judgment, six years after separation with no reasonable prospect of resuming cohabitation, or six months after the first spouse's death. The court may extend the time if there are apparent grounds for relief, the delay was in good faith, and no one will suffer substantial prejudice.
How those dates apply to a divorce granted abroad depends on your facts, so do not assume you are out of time or that you have plenty of it. If you divorced overseas some time ago, ask about limits early.
If you and your former spouse reach a written agreement, a separation agreement is unenforceable unless it is in writing, signed by the parties and witnessed. A court may set aside a domestic contract if a party failed to disclose significant assets or debts, did not understand its nature or consequences, or on contract-law grounds.
If the foreign divorce is not recognized
If your divorce is not recognized, the next step may be a new divorce in Ontario. An Ontario court can hear a divorce proceeding if either spouse has been habitually resident in Ontario for at least one year immediately before the case starts. The ground is breakdown of the marriage, often shown by living separate and apart for at least one year.
Either spouse can start the case by application, or both can file a joint application. A divorce takes effect on the 31st day after the judgment is made, and a certificate that the divorce dissolved the marriage is issued on request.
What to do next
- Collect the foreign divorce order or certificate and any official translation you already have.
- Note the country and court or authority that granted it.
- Write down where each of you lived, and for how long, before the divorce started.
- Keep your original marriage certificate.
- List any property, pensions or RRSPs and any agreements about them.
- Hold off on remarrying or changing your will until a lawyer has confirmed your status.
A lawyer can review the papers, tell you whether Ontario is likely to recognize the divorce, and explain what comes next if it does not.
Frequently asked questions
Does Ontario recognize every divorce granted in another country?
Not automatically. The Divorce Act recognizes a divorce granted outside Canada by a competent authority if either former spouse was habitually resident there for at least one year before the proceedings started. Other recognition rules may also apply.
Do both of us need to have lived in that country for a year?
No. The test is met if either former spouse was habitually resident in that country or subdivision for at least one year immediately before the proceedings started.
Can I remarry in Ontario after a foreign divorce?
No one may marry until every previous marriage has been dissolved. Confirm that your foreign divorce is recognized before you plan a new marriage.
Does my old will change after a divorce?
Unless the will shows a contrary intention, a divorce made after the will is signed revokes gifts to the former spouse and their appointment as executor, and the rest of the will remains valid. A lawyer can help you update it.
Sources
- Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 8 — Justice Laws (federal)
- Divorce Act, s. 3(1) — Justice Laws (federal)
- Divorce Act, s. 22 — Justice Laws (federal)
- Divorce Act, s. 12(1) — Justice Laws (federal)
- Family Law Rules, O. Reg. 114/99, r. 36(1) — Ontario e-Laws
- Civil Marriage Act, ss. 2.1-2.3 — Justice Laws (federal)
- Department of Justice Canada – About Divorce and Separation — justice.gc.ca
- Family Law Act, ss. 4-5 — Ontario e-Laws
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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