I don't know if it's right forum but request you pls help and advise .

[Rubo10]

Hi me and my girlfriend have been seeing each other since 2018 July and , I was living in india however we been friends since 2014 , she proposed me 2018 July when she was in india and October we met in US and basically she is a Canadian and I am Indian . Now when I met we want to get married , the point I want to ask that we both are from same religion how ever she has been in common law with a guy from 15 years and and has 1 kid and now she wants to settle with me ,
1st question does she need a divorce with him as legal paper as she did get married in india with him 15 years back which only has temple certificate nothing else , she has no document in Canada which says she is legally married .
2nd question is can she get married to me in india as registered marriage and can she sponsor me .
How is all this process going to be . She consulted a family lawyer her who said her status is single as per law in Canada .
Would be highly obliged if any body can advise . Rgds

 

[Bryanna]

Hi me and my girlfriend have been seeing each other since 2018 July and , I was living in india however we been friends since 2014 , she proposed me 2018 July when she was in india and October we met in US and basically she is a Canadian and I am Indian . Now when I met we want to get married , the point I want to ask that we both are from same religion how ever she has been in common law with a guy from 15 years and and has 1 kid and now she wants to settle with me ,
1st question does she need a divorce with him as legal paper as she did get married in india with him 15 years back which only has temple certificate nothing else , she has no document in Canada which says she is legally married .

A marriage continues to subsist even if it was not registered with the marriage registration authorities. The temple marriage is still valid.

To answer your question:
Yes, she is still married + she needs to divorce her husband otherwise marrying you would be bigamy.

Also, not sure how she acquired Canadian citizenship. if she immigrated to Canada by stating she was unmarried when she was married (that would be misrepresentation)..... or if she had declared her marriage in her PR application (assuming she immigrated through one of the economic streams) then IRCC would have her marriage on record.... and she would need a divorce decree before she marries you.

2nd question is can she get married to me in india as registered marriage and can she sponsor me .

Answered above.

How is all this process going to be . She consulted a family lawyer her who said her status is single as per law in Canada .
Would be highly obliged if any body can advise . Rgds

The lawyer is wrong. Her marital status is not single but common-law. That said, she does not need to file for divorce nor a separation agreement from her Canadian common-law partner because the Divorce Act and property laws don't apply to her in Canada.

If she has had no contact with the India husband since more than 7 years then she can file for divorce on grounds of desertion. However, it might seem like she deserted him and not the other way around.

She needs to speak with a lawyer who has experience in Family Law/Matrimonial Law in India

 

[Rubo10]

A marriage continues to subsist even if it was not registered with the marriage registration authorities. The temple marriage is still valid.

To answer your question:
Yes, she is still married + she needs to divorce her husband otherwise marrying you would be bigamy.

Also, not sure how she acquired Canadian citizenship. if she immigrated to Canada by stating she was unmarried when she was married (that would be misrepresentation)..... or if she had declared her marriage in her PR application (assuming she immigrated through one of the economic streams) then IRCC would have her marriage on record.... and she would need a divorce decree before she marries you.



Answered above.



The lawyer is wrong. Her marital status is not single but common-law. That said, she does not need to file for divorce nor a separation agreement from her Canadian common-law partner because the Divorce Act and property laws don't apply to her in Canada.

If she has had no contact with the India husband since more than 7 years then she can file for divorce on grounds of desertion. However, it might seem like she deserted him and not the other way around.

She needs to speak with a lawyer who has experience in Family Law/Matrimonial Law in India

Thanks for the reply she came to Canada before she was married and was studying infact use live in US with her first husband . How ever got ur point. The family lawyer it self said she is free to marry that's why I wanted to double check I don't want any thing to happen illegally . She has to get divorced as simple as that can get thank much obliged

 

[cadgijoe]

You guys need to seek counsel in both India and Canada and weigh your options.
I'm not a lawyer in either countries but let me give you some perspectives as certain rules of law are shared in different jurisdictions.

1. If that marriage is recognized in India, they may divorce in either India or Canada. Why also Canada? Because they are Canadian citizens/residents, Canada highly likely has jurisdiction to settle per Canadian laws. It may seem weird at first but think about it, if Canada doesn't take jurisdiction then the couple is forced to go back to their former countries, but what if they are refugees wanted for persecution?

a. Between India and Canada, India may seem a natural pick but hold on. The husband, the child, the common assets (house, car etc.) are all in Canada. Indian court highly likely has to summon the husband, and possibly the child too, and subpoena evidences on the common assets, all from overseas. You guys have to consider the intention of the husband. If he's not willing, there are many ways he can stall the process. It could potentially take years. If not properly done, the husband can later demand the divorce be ruled null and void.

b. I have a feeling that the procedure in Canada would be faster as most of the elements of the case are there. The husband cannot avoid the court summon there.​

2. Now, if that marriage is not recognized in India, it may be considered common law marriage in Canada, per Canadian and applicable provincial family laws. If not properly separating this relation first, the husband can challenge your marriage later.

3. After the divorce, you guys can then get married in either India or Canada. If the marriage is recognized in India but the divorce is rendered in Canada, you may need to have the Canadian decision recognized in India before you guys can get married in India.

So, be careful.

 

[Bryanna]

1. If that marriage is recognized in India, they may divorce in either India or Canada.

The courts also take cognizance of the country where both persons last resided together. In this case, the India courts will have the jurisdiction to hear the merits of a divorce petition because the OP's girlfriend and her husband last lived together in India, not in Canada.

That said, the girlfriend can file for divorce in Canada and serve the summons on the husband in India.

Why also Canada? Because they are Canadian citizens/residents, Canada highly likely has jurisdiction to settle per Canadian laws. It may seem weird at first but think about it, if Canada doesn't take jurisdiction then the couple is forced to go back to their former countries, but what if they are refugees wanted for persecution?

Persecution in India won't work as grounds for seeking a divorce in Canada. India is a relatively safe country + the girlfriend did not get her PR as a refugee claimant.

Between India and Canada, India may seem a natural pick but hold on. The husband, the child, the common assets (house, car etc.) are all in Canada. Indian court highly likely has to summon the husband, and possibly the child too, and subpoena evidences on the common assets, all from overseas. You guys have to consider the intention of the husband. If he's not willing, there are many ways he can stall the process. It could potentially take years. If not properly done, the husband can later demand the divorce be ruled null and void.

Guess you've missed a vital point. The girlfriend was married in a temple marriage to X, in India, about 15 years ago.... but has been in a common-law relationship with Y, in Canada, since the last 15 years.

The girlfriend is not seeking a divorce/separation from the Canadian guy. In any case, the divorce/separation law does NOT apply to this common-law relationship

I have a feeling that the procedure in Canada would be faster as most of the elements of the case are there. The husband cannot avoid the court summon there.

Divorces could take equal lengths of time in either country. Actually, how long the divorce proceedings would take would depend on the grounds on which the divorce is sought.

If the girlfriend has no information about the India husband then it would be a challenge to serve the summons on him. The divorce matter in the court won't move forward unless she proves that the court summons was served on him. The only exception is if she can prove she was deserted/abandoned by the India husband (does not seem to be the case).

2. Now, if that marriage is not recognized in India, it may be considered common law marriage in Canada, per Canadian and applicable provincial family laws. If not properly separating this relation first, the husband can challenge your marriage later.

Her temple marriage in India is fully recognized.

3. After the divorce, you guys can then get married in either India or Canada. If the marriage is recognized in India but the divorce is rendered in Canada, you may need to have the Canadian decision recognized in India before you guys can get married in India.

No, not true

 

[Rubo10]

The courts also take cognizance of the country where both persons last resided together. In this case, the India courts will have the jurisdiction to hear the merits of a divorce petition because the OP's girlfriend and her husband last lived together in India, not in Canada.

That said, the girlfriend can file for divorce in Canada and serve the summons on the husband in India.



Persecution in India won't work as grounds for seeking a divorce in Canada. India is a relatively safe country + the girlfriend did not get her PR as a refugee claimant.



Guess you've missed a vital point. The girlfriend was married in a temple marriage to X, in India, about 15 years ago.... but has been in a common-law relationship with Y, in Canada, since the last 15 years.

The girlfriend is not seeking a divorce/separation from the Canadian guy. In any case, the divorce/separation law does NOT apply to this common-law relationship



Divorces could take equal lengths of time in either country. Actually, how long the divorce proceedings would take would depend on the grounds on which the divorce is sought.

If the girlfriend has no information about the India husband then it would be a challenge to serve the summons on him. The divorce matter in the court won't move forward unless she proves that the court summons was served on him. The only exception is if she can prove she was deserted/abandoned by the India husband (does not seem to be the case).



Her temple marriage in India is fully recognized.



No, not true

Thank you guys , really appreciate your inputs and all of you are correct , she has to be divorced we met all lawyers today , immigration , family there cleared all our doubts . thank you once again cheers God bless