Separating across borders: when one spouse lives abroad or is moving countries

The short answer

When one spouse lives in another country, the first question is not who is right but which court can decide. In Canada, a court can grant a divorce if either spouse has been habitually resident in the province for at least a year before filing; each US state sets its own residency rules. A divorce granted abroad is usually recognised if one spouse genuinely lived there, but it may not settle property or support. If there are children, do not move them across a border without written consent or a court order, because the Hague Child Abduction Convention can require their prompt return. Get advice in both countries before you act.

Separating is hard enough when you both live on the same street. When one of you has moved abroad, is about to, or never lived in the same country as the children, every ordinary question gets a second layer: whose law, which court, which currency, and what happens at the border.

The good news is that the main rules are well established, and Canada and the US are both parties to the key international agreements on child abduction and support. Here they are in plain language, with a short list of things to do this week.

Which country's courts can decide

A separation usually involves three separate questions, and they are not always answered by the same court: ending the marriage (the divorce), dividing property and debts, and deciding parenting and support. It is common for the divorce to happen in one place and the parenting case in another.

In Canada

Under the federal Divorce Act, a court in a province can hear a divorce if either spouse has been habitually resident in that province for at least one year immediately before the case starts. So if you have lived in Ontario for the last year and your spouse has moved to Germany, an Ontario court can usually hear your divorce. Parenting decisions are generally made where the children habitually live, and property is mostly governed by provincial law.

There is one narrow exception for couples who married in Canada but now live abroad. The Civil Marriage Act lets a court in the province where you married grant a divorce if neither of you lives in Canada, you have lived apart for at least a year, and each of you lives in a country that will not grant the divorce because it does not recognise your marriage as valid. It was designed mainly for same-sex couples, and it only ends the marriage. It does not deal with parenting, support or property.

In the US

Divorce is state law. Each state sets its own residency requirement for filing, and they vary a great deal, so check your state on our province and state hubs. For children, almost every state uses the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA), which generally gives priority to the child's "home state", usually where the child lived for the six months before the case started. US courts generally apply the same approach to other countries, which is why a parent who moves a child abroad and files there quickly may find that a US court still has the first say.

Why the first filing can matter

Different countries treat support, property and pensions very differently. That creates an incentive for one spouse to file first in the place that suits them. You do not need to race, but you do need to know your options before the other person files. If you think your spouse may start proceedings abroad, speak to a family lawyer where you live now, and ideally one in the other country too, before you sign anything or agree to where the case will happen.

Will a divorce from another country be recognised?

Canada. Section 22 of the Divorce Act says a divorce granted by a competent authority abroad will be recognised in Canada if either former spouse was habitually resident in that country for at least one year immediately before the divorce proceedings began. Canadian courts can also recognise foreign divorces under older common law rules, for example where there was a real and substantial connection to the country that granted it. Problems tend to arise when the other spouse was never told about the case, when a divorce was obtained somewhere neither spouse really lived, or with some religious divorces that have no civil effect. If you plan to remarry in Canada, the province may ask for proof the foreign divorce is valid.

US. The US has no treaty with any country on recognising divorces. According to the US State Department, recognition is a matter of state law. State courts generally recognise a foreign divorce as a matter of courtesy between legal systems (called comity), and look at things like whether both spouses knew about the case, whether both could take part, and whether either spouse actually lived in the country that granted it.

A divorce is not a settlement. This is the trap people fall into. A foreign divorce can end the marriage while leaving property, support and pension claims unresolved, or it can affect your ability to bring them later. Some limitation periods start running on the date of divorce: in Ontario, for example, an equalization claim generally has to be started within two years of the divorce or six years of separation, whichever comes first. If your spouse has divorced you abroad, or is about to, get advice quickly about what claims you still have and where.

Keep certified copies of any foreign divorce judgment, with certified translations if needed. You will need them for remarriage, pensions and name changes.

Children and the Hague Abduction Convention

Canada and the US are both parties to the 1980 Hague Convention on the Civil Aspects of International Child Abduction. It applies to children under 16 and works on a simple idea: parenting decisions should be made by the courts of the country where the child habitually lives. If a child is wrongfully taken from, or kept out of, that country, the Convention aims to get the child back quickly so those courts can decide.

A few things parents are often surprised by:

It does not decide who the child lives with. A Hague case only decides which country's courts should make that decision.
Keeping a child counts, not just taking one. If your child goes abroad for an agreed summer visit and is not returned on the agreed date, that can be a "wrongful retention".
Time matters. Applications made within one year of the removal or retention are more likely to succeed. After a year, the court can consider whether the child has settled in the new country.
There are limited exceptions. A court can refuse return where there is a grave risk of harm or an intolerable situation, or where a mature child objects. These are narrow and hard to prove.
Not every country is a party. If a child is taken to a country outside the Convention, getting them back is much harder and depends on that country's own courts.

If you are leaving an abusive relationship and want to take the children to another country, speak to a family lawyer before you go. Moving first and explaining later can lead to a court ordering the children back, even where your fears are real. Our guide on separating safely when there is abuse covers the steps to take first. If anyone is in immediate danger, call 911.

If your child has been taken or kept abroad, contact the police and the central authority straight away. In Canada, each province and territory has a central authority, and Global Affairs Canada's consular services can help. In the US, the central authority is the State Department's Office of Children's Issues.

Ordinary holidays get more complicated after separation, and border officials do ask questions. A little paperwork prevents most problems.

Consent letters (Canada). The Government of Canada recommends a consent letter whenever a child travels abroad alone, with only one parent, or with other adults. It is not legally required, but officials and airlines can ask for one, and not having it can cause delays or refusal. It should be signed by any parent with decision-making responsibility who is not travelling, and having a notary witness the signature is strongly recommended. Carry the original.

Consent letters (US). There is no single federal form, but a signed and notarised letter from the non-travelling parent, with the trip dates and contact details, is widely recommended for the same reasons.

Passports. For a Canadian child's passport, if there is an order or agreement dealing with parenting, you must submit all legal documents with valid clauses about custody, decision-making, parenting time or mobility. For a US passport for a child under 16, both parents normally apply in person with the child, or the absent parent signs a notarised Statement of Consent (Form DS-3053), unless one parent has sole custody under a court order. If you fear a child may be taken abroad, US parents can enrol a US citizen child in the free Children's Passport Issuance Alert Program, which notifies you if someone applies for a passport for them.

Put travel rules in your parenting plan. The calmest families agree these in advance:

how much notice the travelling parent gives, and what details (itinerary, addresses, return flights);
that consent letters and passport signatures will not be unreasonably withheld;
who keeps the passports between trips;
whether travel to countries outside the Hague Convention needs written agreement or a court order;
how the children will contact the other parent while away.

Our parenting plan guide has more on wording, and if one of you plans to move countries permanently, read moving with the kids after separation. In Canada, a parent planning a relocation under the Divorce Act must give written notice at least 60 days before the move.

Enforcing support internationally

A support order is only useful if it can be collected. When the paying parent lives abroad, enforcement depends on which agreements exist between the two places.

Canada. Every province and territory has interjurisdictional support orders legislation and arrangements with reciprocating jurisdictions, including US states. These let you apply to get an order made, recognised or changed in another place without travelling there. The 2007 Hague Child Support Convention entered into force for Canada on 1 February 2024, and the Hague Conference currently lists central authorities for British Columbia, Manitoba, Nova Scotia, Ontario and Saskatchewan. Other provinces and territories continue to rely on their reciprocal arrangements, and coverage may expand, so ask your provincial maintenance enforcement program or interjurisdictional support office which route applies to you.

US. The Convention entered into force for the US on 1 January 2017. The federal Office of Child Support Services acts as the US central authority and also works with "foreign reciprocating countries", including Canadian provinces and territories. Within the US, the Uniform Interstate Family Support Act governs cases. Your route in is your state child support agency.

Make the order travel-friendly from the start. Spell out the amount and currency, how exchange rates are handled, how payments are made, and how income disclosure works each year. If the paying parent's income is earned abroad, agree what documents count as proof. Our guide to enforcing child and spousal support explains what enforcement programs can and cannot do.

Property, pensions and tax abroad

Assets in another country still count. A house in Portugal, a pension from a UK employer, or a bank account in the Philippines belongs in financial disclosure in the same way a local RRSP or 401(k) does. Hiding foreign assets is one of the fastest ways to lose credibility with a court.

Valuation and currency. Agree which date and exchange rate you are using. Swings in currency can move a settlement by a real amount.
Foreign pensions. Some can be split by a court order in that country only. Ask the plan administrator early what they need.
Tax. Moving countries can change your tax residency, and transferring property across borders can trigger tax in one or both countries. US citizens remain subject to US tax wherever they live. A cross-border tax adviser is worth paying for before you sign.
Immigration. If your status in Canada or the US depends on your spouse, read immigration status and separation before you make any move.

What to do this week

Write down where everyone has lived for the last two years, with dates: you, your spouse and each child. Residency and habitual residence decide which courts can act.
Gather the documents: marriage certificate, children's birth certificates and passports, any existing orders or agreements, and certified translations where needed.
Keep the children where they are unless you have written consent or a court order. If you fear they may be taken abroad, ask a lawyer about urgent orders and, in the US, enrol them in the passport alert program.
Book advice in both countries. One consultation with a family lawyer in each place is far cheaper than a case in the wrong court. Our professional directory can help on the Canadian and US side.
List assets and debts in every country, with currency and approximate values.
Contact your support enforcement office if support is already owed or you have an order you need recognised abroad.

Common questions

Can I get divorced in Canada if my spouse lives in another country?

Usually yes, if you have been habitually resident in a Canadian province for at least one year before you file. Your spouse still has to be properly served, which can take extra time when they live abroad.

Is a divorce from another country valid in Canada or the US?

Often, yes. Canada recognises a foreign divorce if either spouse was habitually resident in that country for at least a year before the proceedings, and US states generally recognise foreign divorces as a matter of comity. Recognition can be refused if the other spouse was not notified or neither spouse really lived there.

Can my ex take our child abroad without my permission?

Not lawfully if it breaches your parenting rights. If a child under 16 is wrongfully taken to or kept in a country that has joined the Hague Abduction Convention, you can apply for the child's prompt return. Act quickly and contact the police and the central authority.

Can child support be enforced if my ex moves overseas?

Often, yes. Canadian provinces and US states have reciprocal arrangements with many countries, and both Canada and the US have joined the 2007 Hague Child Support Convention. Start with your provincial maintenance enforcement program or your state child support agency.

Official sources

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This guide is legal information, not legal advice, and it is written for a general audience across Canada and the United States. Family law is provincial and state-based and changes over time. Before you rely on anything here for your own situation, confirm it with a qualified family lawyer in your province or state. FairWell can connect you with one through the professional directory.