Video: The Difference Between Separation and Divorce in Ontario
This was explored in a case called Azam v. Jan, in which a series of Alberta courts had to determine an interesting issue: can a court grant a divorce in a marriage that was never legally valid in the first place?
One interesting case that took place in Ontario explores the question of whether, for the purposes of divorce, a same-sex union in another country can constitute a “marriage” in Canada.
In 2012, there was “controversy” over same-sex marriages, and specifically the issue of divorce for same-sex couples legally married in Canada. Media coverage included allegations that the government had done a “legal about-face” and a “reversal of federal policy” on the issue of same-sex unions. However, there was no “controversy” at all.
This case took place in Ontario, and had extremely unusual facts. In order to resolve the couple’s issues on separation, the court had to first determine if they were legally married. A further twist was that the husband had been living under a fake identity, and it was uncertain if the couple had been married in Florida which could affect the legality of their union Ontario.
A couple was married in an Islamic religious ceremony in about 2002 or 2003. The ceremony was performed before a witness at the wife’s home. Unfortunately, they neglected to get a marriage license and did not register the marriage in Ontario. They were unaware of the legal requirements. They lived together as a married couple until 2010 when they decided to separate.
The central issue in this case was whether a religious marriage conducted in Ontario was valid, and whether the spouses were legally married and entitled to equalize property under provincial Family Law.
In this matter, the main issue was whether the wife should pay almost $150,000 as an equalization payment to the husband. However, the husband’s entitlement to equalization was dependent on whether he was truly the wife’s “spouse,” which was contingent on whether his prior divorce to another woman in another country was real and legally valid.