Religious Divorce vs Legal Divorce in BC: Do You Need Both?

So Do You Need Both?

If your faith or community expects a religious divorce before you can remarry religiously, then as a practical matter you may need both: the civil divorce to end the marriage in law, and the religious divorce to move forward within your community.

If religious remarriage is not a concern for you, the civil divorce alone changes your legal status.

On timing, section 12(1) of the Divorce Act says that, subject to some exceptions, a divorce takes effect on the thirty-first day after the day the judgment granting it is rendered. If you are planning a new marriage, see our post on the certificate of divorce in British Columbia and when you can remarry.

What If Your Spouse Refuses to Remove a Religious Barrier to Remarriage?

This is where the two tracks meet in the Divorce Act itself. Some religious barriers to remarriage can only be removed by one of the spouses personally, for example where a faith requires one spouse to grant or accept the religious divorce. Parliament addressed the situation where a spouse withholds that cooperation while still asking the court for things in the divorce case.

Section 21.1 of the Divorce Act allows a spouse to serve on the other spouse, and file with the court, an affidavit setting out, among other things, the nature of the barriers to their religious remarriage whose removal is within the other spouse's control, the written request they made asking for the barriers to be removed, and the fact that the other spouse has not removed them.

If the other spouse does not, within fifteen days or a longer period the court allows, file an affidavit showing the barriers have been removed and satisfy the court of that, section 21.1(3) lets the court dismiss any application that spouse has filed under the Divorce Act and strike out their other pleadings and affidavits. In plain terms, a spouse who refuses to remove a religious barrier within their control risks losing the ability to ask the court for anything in the divorce proceeding.

The section has real limits, and it is worth stating them carefully:

• The court's powers are procedural. Section 21.1 does not let the court grant a religious divorce or order that one be granted.
• Under section 21.1(4), the court may decline to act where the refusing spouse files an affidavit showing genuine grounds of a religious or conscientious nature for the refusal, and satisfies the court of those grounds.
• Under section 21.1(6), the section does not apply at all where the power to remove the barrier lies with a religious body or official rather than with the spouse.

Whether section 21.1 can help in your situation depends on the details, including who actually controls the barrier in your faith. That is a conversation to have with a family lawyer early in the process.

What About Religious Marriage Contracts?

Religious marriage often comes with a contract, and those contracts can raise their own questions when the marriage ends. A common example in Islamic marriages is the maher. If that is part of your situation, our post on understanding maher in Islamic marriage contracts in British Columbia looks at how these promises come up in a BC separation.

What About a Divorce from Another Country?

Some people have already completed a divorce abroad, sometimes through a process connected to their faith, and want to know whether Canada treats them as divorced. Section 22(1) of the Divorce Act recognizes a divorce granted by a competent authority in another country if either former spouse was habitually resident in that country for at least one year immediately before the divorce proceedings began, and section 22(3) preserves other legal rules for recognizing foreign divorces. Whether a particular foreign divorce is recognized here depends on the facts, so bring the documents to a lawyer rather than assuming either way.

How Can a Family Lawyer Help?

A family lawyer handles the civil side: the divorce itself, parenting arrangements, support, property division and agreements. Our divorce in BC page gives an overview of that process. For the religious side, your faith leaders and community are the right guides, and we work alongside that process rather than in place of it.

If you are facing a separation and wondering how the legal and religious pieces fit together, our Surrey divorce lawyers at SiLaw Group can walk you through the civil process, including whether section 21.1 of the Divorce Act is relevant to your case.

This post is general information, not legal advice. For advice about your own situation, speak with a family lawyer.