Beware of Quickie Divorces from Foreign Jurisdictions
By Patrick Rocca | October 29, 2012
Immigration lawyer Karen Kwan Anderson: This post refers to clients who have married foreign nationals and subsequently discover that the foreign spouse had a prior divorce that was not valid. This means that the current marriage is not recognized in Canada.
The issue is that the foreign spouse did not reside at least one year in the jurisdiction that granted the divorce and there is information to reasonably assume that the other spouse did not live in the granting jurisdiction as well.
The Divorce Act of Canada requires that at least one of the parties to the divorce fulfill this residency requirement in order for the subsequent marriage to be recognized in Canada.
I was recently retained by a client who married her husband outside Canada. We’ll call her Cathy. After marrying her husband, Cathy sponsored her husband’s application for permanent residence in Canada. He was interviewed by a Canadian visa officer and was refused. Cathy could not understand why Regulation 117(9)(c)9i) of the Immigration and Refugee Protection Regulations applied to her and her husband.
I obtained a printout of the visa file. Not only did the visa officer refuse the application because he was not satisfied the marriage was genuine, but also because Cathy’s sponsored spouse was still the spouse of another person at the time he and Cathy were married. He and his ex-wife did not ordinarily reside for at least one year in the jurisdiction that granted the “quickie” divorce. Cathy’s husband was the spouse of another person because his divorce was not valid at the time he married Cathy.
This put Cathy in a legal conundrum.
No appeal is possible to the Immigration Appeal Division (IAD) for this type of refusal, because the IAD will only hear appeals involving members of the family class. The “husband” in this matter is not a member of the family class because he was not properly divorced from his ex-wife before marrying Cathy. There is no way to argue this issue: it’s simply a fact.
Cathy had to seek a legal opinion from qualified counsel in the country in which the divorce should have been obtained, to determine if a divorce could now be granted to the husband and his ex-wife. Cathy should have also sought a legal opinion from the country in which she and her husband were married, to determine if they could annul the marriage.
Note that an annulment is not the same as a divorce. If the divorce from the ex-wife and the annulment of the current marriage are granted, then the client may consider marrying her husband and filing a new sponsorship application. It would essentially allow Cathy and her husband to start from scratch.
In Cathy’s case, the government of where the marriage ceremony occurred did not require a legal opinion on whether the husband’s divorce was valid. This is why in Ontario, the office of the Registrar General requires a lawyer’s opinion on whether a party who has a foreign divorce is free to remarry. The lawyer must review the foreign divorce documents to determine if one or both persons to the divorce was ordinarily resident in the granting jurisdiction at least one year prior to beginning the divorce proceedings. If the lawyer’s opinion is positive, the party with the foreign divorce is free to marry the other party. The Registrar General then grants authorization to marry, which allows the parties to apply for a marriage licence.
In the cases I handle, after the parties marry, the spouse who is a citizen or permanent resident of Canada then begins the process of sponsoring their spouse in an application for permanent residence to Canada.
In hindsight, Cathy could have avoided her legal nightmare by seeking a legal opinion on whether her fiance had a valid divorce from his ex-wife. It is money worth spending to protect oneself in the future.
Whether the marriage ceremony is at a government office, in a church, or on a beach, beware the perils of getting married outside of Canada to a person who has a divorce from elsewhere in their past.