Is a foreign religious divorce recognized in Canada?
This question has come up before the Court of Appeal for Ontario recently. The question on this appeal is whether Canadian law recognizes an Islamic talaq divorce (a “bare talaq divorce”), performed in Ontario and subsequently registered with Egyptian governmental agencies. A bare talaq divorce arises from the husband’s unilateral and exclusive right to dissolve the marriage through a “private recital of verbal formula”. Courts have declined to recognize bare talaq divorces as effective; without some form of adjudicative or official oversight, they are regarded as “manifestly contrary to public policy”.
The motion judge acknowledged the invalidity of a “bare, unilateral talaq” divorce but held that since the bare talaq divorce, in this case, was later registered with Egyptian governmental agencies, it was a presumptively valid foreign divorce under the Divorce Act.
The Court of Appeal for Ontario found that the motion judge erred in law in failing to distinguish between the granting and the registering of a divorce. In the circumstances of this case, registering the divorce with the Egyptian Embassy, the Civil Affairs Registry and the Ministry of Justice in Egypt amounted to no more than the evidentiary attestation of the respondent’s unilateral pronouncement of a bare talaq. The Court further opined that the motion judge also erred in law by recognizing the registered bare talaq divorce as a valid divorce under the Divorce Act in accordance with a conflict of laws and common law principles. The parties had no real and substantial connection to Egypt at the time of the divorce.