Obtaining a divorce can be a difficult thing to do not just emotionally, but legally – and when geography gets in the way, matters complicate even more. Jurisdictional issues, conflicting foreign laws, and uncertainty when serving the papers can all come into play. So if you’ve separated from your overseas partner and you're ready to pursue a divorce, it’s critical to know how to go about the process to ensure your interests are protected. In this blog, we’ll answer the question: How can I divorce my partner who lives overseas?
How to Divorce A Partner Who Lives Overseas
While the Divorce Act is governed by federal law, the provinces and territories govern the processes for getting a divorce. Once you’ve confirmed that you qualify for a divorce in BC (learn what qualifies here), you or your lawyer will need to apply to the BC Supreme Court to legally divorce your overseas partner.
From there, you and/or your lawyer will be responsible for serving your partner with proper documents notifying them of your application. This tends to be the most challenging aspect. In order to serve a document outside of BC, you will need to ensure the document:
- Follows guidelines laid out by BC’s Supreme Court Family Rules for service;
- Follows the guidelines of the place your partner resides in for service, so long as the document is reasonably expected to provide notice; OR,
- If the document is serviced in a “contracting state” of the Hague Convention, follows the guidelines for service permitted under the Hague Convention.
What’s most important to note here is that your ability to serve your overseas partner correctly will heavily depend on either your ability to locate them in-person via an agent, the rules for service laid out by their place of residence, and whether said country has signed the Hague Convention.
Below we’ll discuss what to do if you aren’t sure where your partner resides, but first let’s dive into how the Hague Convention plays into overseas divorce.
The Hague Convention & Divorcing A Partner Overseas
The Hague Convention is shorthand for an international treaty that applies, among other times, when a person residing in a signatory country to the treaty serves family law documents to a person living in another signatory country. In the context of an overseas divorce where both parties live in a signatory state to the treaty, you will need to ensure the notice of divorce adheres to the rules laid out by the Convention if you are unable to serve in accordance with the BC Supreme Court Rules, or the service rules of the state where the other party resides.
Wondering what these guidelines are? For one, you’ll need to ensure the document is serviced through a ‘Central Authority’ – but what qualifies varies from country to country. You’ll also need to ensure the document is translated into an official language of said country. To view the Convention rules around servicing signatory countries in their entirety, click here.
In short, the Hague Convention is quite complex, and confusion abounds. This among many other reasons are why it’s best to reach out to a family lawyer before pursuing a divorce with someone overseas.
If you are filing for a divorce from an overseas partner and you do not know the whereabouts of your partner, all hope is not lost.
First, you must make every reasonable effort to find them, which often includes retaining a skip tracer. If unsuccessful, you can then apply to a judge asking for an order of substituted service. This is a court order describing what you must do to ensure your spouse is aware of your filing, within the possible options. These days, electronic delivery of documents via email or social media is a common route you may be asked to take in order to deliver your notice.
Here to HelpDivorcing a partner who is overseas can be complicated as international laws come into play. Luckily, the team at Westside Family Law is here to help. Contact us to ensure this sensitive matter is handled properly.