Indian Divorce in Canada: What Indian Families Need to Know
By Chohan & Chatha LLP – Family Lawyers
At Chohan & Chatha LLP, we often work with Indian and Punjabi-speaking families navigating separation or divorce in Canada. These cases often raise unique legal and cultural questions—especially when a marriage took place in India, immigration status is tied to the relationship, or issues like dowry, extended family expectations, or community pressure come into play.
This article is Part 1 of our Indian Divorce in Canada series and focuses on:
Whether you can get a divorce in Canada if you were married in India
Whether you need a divorce in both countries
How immigration status is affected by separation or divorce in Canada
Annulments in cases of suspected immigration fraud
Can I Get Divorced in Canada If I Was Married in India?
Yes. Canadian courts can grant a divorce even if you were married in India (or any other country), as long as at least one spouse has been living in a Canadian province for at least one year before filing for divorce.
Many Indian clients mistakenly believe they need to return to India for divorce. That’s not true—you do not need to divorce in India if you qualify under Canadian divorce law.
Do I Need to Get Divorced in Both Canada and India?
No. A divorce granted in Canada is generally recognized by Indian authorities, and vice versa, assuming it was legally valid and properly obtained. That means you usually don’t need to go through two separate divorce processes.
However, you may want to speak with a lawyer if you’re planning to remarry in India or need legal recognition there for property division, dowry return, or family inheritance purposes.
Divorce in India vs. Divorce in Canada: Key Differences
In India:
Mutual Consent Divorce: Requires agreement by both parties and a 6-month waiting period, during which reconciliation is encouraged.
Contested Divorce: Can take several years, often involving multiple court appearances.
In Canada:
You may file for:
Joint Divorce
Uncontested Divorce
Contested Divorce
Except in cases involving adultery or cruelty, couples must be separated for at least one year before being granted a divorce.
Most uncontested or joint divorces in Canada do not require a court appearance. They are typically granted through what is known as a “desk order.”
How Does Divorce Affect Immigration Status?
This is one of the most pressing concerns for Indian nationals or permanent residents going through a divorce in Canada. The impact varies depending on your status.
1. If You’re a Canadian Citizen:
Divorce will not affect your status. You remain a Canadian citizen regardless of your marital status.
2. If You’re a Permanent Resident (PR):
If you obtained PR through family sponsorship, you will not lose your PR status just because you’re divorcing.
However, if it can be proven that the marriage was fraudulent, the sponsor can file a complaint, and your status could be challenged by immigration authorities.
3. If You Have No Permanent Status (Visitor Visa, Work Permit, etc.):
Once your visa expires, you may be required to leave Canada unless you apply for permanent residence under another category.
You may apply to stay in Canada on Humanitarian & Compassionate (H&C) grounds, especially if you have a child in Canada.
You may not be eligible for spousal support if you were not sponsored, but you can apply for child support if there is a child from the relationship.
Immigration options in these cases are complex and should be handled by an immigration lawyer.
Can I Get Our Marriage Annulled Due to Immigration Fraud?
It’s unfortunately common for one partner to feel they were taken advantage of—used solely as a means to immigrate to Canada. If you believe the marriage was fraudulent, forced, or never consummated, you may be able to apply for annulment instead of divorce.
Annulments are rare and require strong evidence. They are:
Difficult to obtain
Emotionally and financially demanding
Require a detailed legal assessment to determine if your case qualifies
If you’re considering this route, we can provide a confidential consultation to help you explore your options.
We’re Here to Help
At Chohan & Chatha LLP, we understand the legal, cultural, and emotional challenges Indian and South Asian couples face during separation and divorce in Canada. We offer services in Punjabi, Hindi, and English, and are here to guide you through every step—whether it’s filing for divorce, protecting your immigration status, or dealing with cross-border legal issues.
📞 Contact us today to book a consultation and learn more about how we can help.
Dividing Property, Debt & Jewelry in Indian Divorce Cases
By Chohan & Chatha LLP – Divorce & Family Lawyers
When Indian couples divorce in British Columbia, property division often becomes more complicated than it is in other families. Why? Because in many South Asian households, wealth like houses, businesses, and down payments is built communally, with help from parents, in-laws, or extended family.
At Chohan & Chatha LLP, we regularly advise Punjabi and Hindi-speaking clients facing separation or divorce. We understand that in our culture, it’s common for relatives to provide financial support—whether through loans or gifts—but very few families put these agreements in writing. That can create serious legal complications when a marriage ends.
This article covers the most common issues South Asian families face during divorce in BC:
Was the down payment a loan or a gift?
How is jewelry divided under BC family law?
Who is responsible for family debt, and what if the money came from relatives?
Loans vs. Gifts: When In-Laws Help Buy a Home
In Indian culture, it’s common for parents or in-laws to contribute toward a home’s down payment or mortgage. Sometimes, the money is a loan, but other times it’s a gift. The challenge? Disagreements often arise after separation.
For example:
The wife may say the money was a gift.
The husband (or his parents) may insist it was a loan.
If there’s no written agreement, it becomes a legal dispute, and the court must decide based on intention at the time the money was given, not what the parties now say.
Why This Matters
If the court decides it was a gift, it becomes part of the couple’s property and is subject to division.
If it was a loan, it must be repaid to the lender before property is divided.
But Here’s the Problem
Most Indian families don’t create loan agreements in writing. Everything is verbal. That can hurt the person trying to recover the funds.
How Courts Decide: Was It a Gift or a Loan?
The Supreme Court of Canada provided a list of factors to consider:
Was there any written documentation (even a note or card)?
Were there discussions about repayment?
Was any security taken (e.g. lien, mortgage)?
Was the money given to one child only, or unequally among children?
Was repayment ever demanded, especially before separation?
Was there any partial repayment?
Was there a reasonable expectation of repayment?
If you’re a parent or sibling contributing large sums, it’s best to have something in writing—even an email or message confirming the intention.
Dividing Jewelry at Divorce
Jewelry plays a huge role in Indian weddings and celebrations. Gold sets, bangles, watches, and coins are common gifts. But when divorce happens, who keeps the jewelry?
Generally, if jewelry was gifted to one spouse, it remains their individual property and is not divided 50/50.
Common Disputes We See:
Who was the gift intended for? Was the gold coin for the bride, the groom, or both?
What happened to the jewelry? One party may say the other took it from a safety deposit box.
Did the jewelry disappear? Courts often have to assess credibility when no one admits to taking it.
How to Prove Jewelry Was Gifted to You
Affidavit or testimony from the person who gave the gift.
Witnesses who saw the gift being given (e.g., at the wedding).
Cards or notes that came with the gift.
Your possession and use of the jewelry (e.g., always worn by you).
Contextual clues – a diamond bracelet may be a gift for the wife, while a men’s watch likely belongs to the husband.
If the jewelry is missing and both spouses blame each other, the court will rely on credibility. Judges may find in your favour if you are generally more honest and consistent throughout your case.
Dividing Debt at Divorce
Debt division is just as important as dividing property. In BC, family debt includes:
Any debt incurred during the relationship, and
Debt incurred after separation for maintaining family property (e.g., house maintenance, taxes, mortgage).
Steps:
Calculate total family debt.
Divide it equally—each spouse is responsible for 50%.
But what if parents or siblings loaned money during the marriage?
To Recover That Loan, They Must Prove:
It was in fact a loan (not a gift)
The purpose of the loan (e.g., for business, legal fees, wedding expenses)
How it should be repaid (cash? sale of the house? installments?)
Again, written documentation—even just a WhatsApp message—can make a huge difference.
Serving Ontario divorce documents abroad, especially in India and other Hague Convention states
Serving Divorce Papers in India – What You Need to Know
Many clients ask: “India is part of the Hague Convention — so why can’t I just use that to serve divorce papers?”
The answer is: India is a signatory to the Hague Service Convention (1965), but in practice it does not process Canadian divorce petitions through the Hague system.
Why the Hague Convention Doesn’t Work in India for Divorce
On paper: India signed the Hague Convention, which is meant to make serving legal papers abroad faster and simpler.
In reality: India has made reservations and does not allow foreign divorce papers to be served through its Central Authority. Requests often go unanswered, or are rejected.
Result: Ontario divorce applications sent to India under the Hague process usually fail.
What This Means for You
If your spouse lives in India, you cannot rely on the Hague system alone. Instead, lawyers in Ontario use practical and legally accepted methods, such as:
Hiring a licensed process server in India to deliver the documents, and then filing their sworn affidavit in Ontario; or
Asking the Ontario court for an order allowing substituted service (for example, by email, WhatsApp, or courier).
✅ Bottom line:
Even though India has signed the Hague Convention, it does not work in practice for Canadian divorce cases. An Ontario family lawyer will guide you through the correct process, saving you months of wasted time and ensuring your divorce proceeds smoothly.
When one spouse lives outside Canada, serving divorce papers becomes complicated. Many people think they can just mail the papers overseas — but in reality, improper service can delay your case for months or even cause the divorce to be thrown out completely.
This is where an experienced family lawyer makes all the difference.
The Lawyer’s Role
Making sure service is legally valid
Every country has different rules for how court papers must be served. Some countries (like the U.S. or U.K.) follow the Hague Convention, while others (like India) do not. A lawyer ensures the right procedure is followed so the Ontario court will accept it.
Working with international authorities
In Hague Convention countries, service often goes through a government “Central Authority.” Your lawyer prepares the request, ensures the paperwork is correct, and avoids months of unnecessary delays.
Finding practical solutions in non-Hague countries
Since India is not part of the Hague Convention, lawyers arrange for licensed process servers to deliver papers in India, or bring motions in Ontario for substituted service (for example, by WhatsApp, email, or courier).
Protecting your rights
If service is not done correctly, your spouse could later claim:
“I was never properly served,” or
“Ontario courts had no jurisdiction.”
A lawyer makes sure the divorce order is enforceable and final.
Saving time and stress
A self-represented person may spend months trying to figure out foreign service rules, only to have documents rejected. A lawyer knows the system and keeps your case moving forward.
Indian courts recognise foreign divorce decrees under certain conditions, but there is no blanket rule. Recognition depends on satisfying several legal tests. Key statutes and legal sources:
Code of Civil Procedure (CPC), Section 13 – sets out when foreign judgments are not recognised.
A foreign decree must be by a “court of competent jurisdiction.”
The defendant/respondent must have been served properly, must have had an opportunity to be heard, and the decision must be “on the merits.”
The decree must concern grounds for divorce recognised under the law under which the parties were married. If the foreign court grants divorce on a ground that is not available under Indian law for that type of marriage (e.g. under Hindu Marriage Act), recognition will be refused.
The foreign judgment must not violate natural justice, be contrary to public policy, or obtained by fraud.
Evidence Act, CPC, and other statutory law – determination of whether the foreign divorce is valid also depends on how the marriage was registered, domicile/residence, nationality, etc. Courts may look at where the spouses lived, whether one spouse submitted to foreign court jurisdiction, etc.
Attestation / Apostille of Documents – increasingly important. Foreign divorce decrees need proper apostille or attestation to be accepted by Indian authorities (e.g. Registrar Offices, Consulates).
Mutual Divorce / Uncontested Decrees – these are easier to get recognised if both spouses are involved or consent. Opposed or ex parte divorces often get rejected if the respondent was not served or did not appear.
Latest Trends & Developments
Here are what I see as the recent or emerging developments:
Use of Apostille by Canada and India: Since Canada became a member of the Hague Apostille Convention (January 2024) and India having been a member since earlier, Canadian divorce decrees that are apostilled by a recognized Canadian authority are being more readily accepted in India without needing further legalization at Indian consulates for many civil matters.
Consulates are stricter about ex parte / opposed decrees: Indian consulates or registrar offices often refuse to attest (or recognize) foreign divorces if they are ex parte (i.e. the other party was not involved) or opposed and the respondent was not given notice.
Recognition for purposes like remarriage registration: Local municipal or registration authorities (for registering remarriages) are increasingly accepting foreign divorce decrees, especially mutual consent ones, provided they are appropriately certified/apostilled, translated (if needed), and conform to the above legal tests. There are accounts (some anecdotal) of Suvida Centres or local offices not pushing back much in mutual divorce cases. However, practices still vary greatly by state/district/registrar office. (Note: these are informal reports / community experiences, not always published court judgments.)
Case law restating importance of "on the merits": Indian Supreme Court continues to emphasise that a foreign divorce order will not be recognised if the respondent was not heard or served properly, or if the case was decided by default in ways that do not meet Indian conceptions of due process.
Limitations & Unsettled Areas
Disparity across jurisdictions (states/districts): Even if the legal tests are met, local officials or registrars sometimes reject or delay acceptance due to local practice or lack of clarity. There is no uniformly applied administrative protocol across all of India.
Grounds mismatch: A divorce decree valid in Canada might base its decision on grounds (e.g., “irreconcilable differences”) that are not grounds under Indian personal law for a given religion. If so, recognition may be denied or need further adjudication.
Ex parte decrees or default judgments: Courts are reluctant to recognise foreign divorces obtained without notice to the respondent, or where the respondent did not have a chance to contest.
Public policy / natural justice: These are still invoked and can block recognition.
Practical Implications & Advice for Clients
Based on what I see, here is what clients (especially those moving between Canada and India) should do to maximize likelihood that their Canadian divorce is recognised in India:
Ensure Mutual Consent / Participation
Try to proceed with divorce in such a way that both spouses are involved — mutual consent helps avoid battles about lack of notice or jurisdiction.
Service & Notice
Make sure the respondent/spouse is properly served, is given chance to participate.
Proper Documentation: Apostille / Attestation
Get the decree apostilled in Canada by the designated authority. If required, have it translated. Carry also an attestation where needed. India’s Consulate in Toronto has issued guidance that apostilled Canadian civil documents (divorce orders included) from designated provincial authorities may be used without further legalization if they are apostilled.
Match Grounds of Divorce with Indian Law
If the grounds in the divorce are ones recognised under Indian law (depending on religion, marriage act under which married), the recognition is more likely. If different, there could be issues.
Be Prepared for Submissions
Even with everything done, there may need to be a petition in Indian courts/statutory body for recognition or declaration of status. Sometimes people file a Small Cause Court petition, or family court, to establish that the foreign divorce dissolved the marriage under Indian law for the purposes of re-marriage, inheritance, etc.
Lawyer Local Counsel in India
Because local practice varies (registrars, municipal bodies), having a lawyer in the state where recognition is sought helps. They can engage the Registrar/Marriage Office, ensure all documents are acceptable.