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My country does not recognize same-sex marriages. Will my same-sex partner be considered my spouse for Canadian immigration purposes?

A same sex marriage

Unfortunately at present, many countries in the world still do not legally recognize same-sex marriages. One source of hope is that under the Canadian immigration laws, if the marriage took place in any other country where same-sex marriage is legal, an applicant’s same-sex spouse will be duly recognized as such for immigration purposes.

In other words, even if same-sex marriage is not legal in someone’s country of citizenship, as long as the couple can travel abroad and get legally married in a different country that recognizes same-sex marriages, the applicant’s same-sex partner can duly receive any applicable immigration benefits as their spouse.

For example, under New York law, it is possible for two foreign nationals to legally get married and register their marriage. This means two foreign nationals, even if they are temporarily in New York in a non-immigrant status, can apply at the New York City Hall to obtain a marriage license and, after 24 hours or more, can perform the marriage ceremony in New York in front of a lawfully authorized officer and required witness(es) and, once completed and duly registered, obtain an official marriage certificate that proves the marriage.

For the purpose of defining a legal “marriage” in Canadian immigration law, a marriage that is valid both under the “laws of the jurisdiction where it took place” and under Canadian law is valid.  Same-sex marriages are valid in Canada. This means a marriage of a same-sex couple is legally valid if it is valid in the jurisdiction in which it is performed.

For example, same-sex marriages are not legally recognized in China and a Chinese same-sex couple will not be seen as spouses under Chinese law. However, if a Chinese couple performs and registers their marriage in New York, for example, IRCC will consider this marriage valid and recognize the two Chinese individuals as spouses for the purposes of determining Canadian immigration benefits, even if they are not considered married under Chinese law.

In sum, same-sex marriages are valid for Canadian immigration purposes if legal in the country where it was held, even if it is not legal in the couple’s country of citizenship.

In addition, Canada also recognizes common-law partnerships as a valid basis for many immigration benefits, including permanent residency by family sponsorship. Common-law partners refer to conjugal relationships where the couple has lived together for at least 1 year. In such a case, no legal marriage is required. Thus, if a same-sex couple has lived together in a conjugal relationship for over 1 year in a country that does not recognize same-sex marriage, they can still be considered “common-law partners” in the eyes of Canadian immigration law.

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