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Same-Sex Divorce

Same-sex divorce applies only to legally married same-sex spouses. Legally married same-sex spouses have the same rights and obligations as legally married heterosexual spouses both federally, under the Divorce Act to claim divorce, and provincially under the Family Law Act for support claims and division of property. At Frenkel and Tobin our experienced divorce lawyers can help you with filing for divorce and provide sound advise on legal matters.

In same-sex common-law relationships, as in heterosexual common-law relationships, partners do not have the same rights and obligations, as do legally married couples. For example, common-law partners are not entitled to equalization of net family property when the relationship breaks down.

What are some of the issues that may come up in a same-sex divorce?

While there is no discrimination in terms of sexual orientation and legal marital rights, some issues that may surface include:

  1. validity of the marriage;
    • did the marriage take place outside of Canada where same-sex marriage is not legally recognized?
  2. residence;
    • did you marry in Canada but live abroad where same-sex marriage is not legally recognized?
  3. adoption of a spouse’s biological child;
    • both parents are entitled to custody, however issues may come up that may give preference to the biological parent
  4. children who are born from surrogacy or fertility treatment;
  5. child custody;
  6. spousal support;
    • may be harder to prove that one partner gave up his/her career to assume child care and domestic responsibilities.