Polygamy is legal for Muslims in many countries including India, Malaysia, Philippines, and Singapore and some African countries. In a previous article, we discussed how are foreign polygamous marriages treated in Canadian family law. This article discusses what you need to be aware of when sponsoring your polygamous spouses under family class. As polygamy is illegal in Canada, a foreign polygamous marriage may give rise to a dilemma for a Canadian sponsor.
The Immigration and Refugee Protection Regulations (IRPR) has stated that a spouse is not a member of the family class if the spouse or sponsor was already married to another person at the time of the subsequent marriage. In order for the first marriage to be recognized by Canadian law, the couple must live together in a monogamous marriage in Canada. Common law imparts that a polygamous marriage can be converted to a monogamous one so long as the couple states their intention to do so, followed by some factual evidence that they have complied – usually by divorcing the other spouse or remarry the first spouse in a form that is recognized by Canadian law.
But what if the Canadian husband wishes to sponsor a wife other than the first wife? Unlike the first marriage, the second or subsequent polygamous marriage cannot be converted to a monogamous one. The husband must divorce other wives and remarry the chosen wife in a form that is valid in Canada. He and his chosen wife must sign a declaration to that effect.
It is important for the sponsor and the spouse being sponsored to know that all other spouses will not be eligible to be sponsored under family class. All other spouses would be considered as single in law. Even if the children of the other spouses sponsor the other spouses in the future, other spouses will not have benefits or entitlements flowing from the spouse status at law.
Since polygamy is prohibited by the IRPR, the second spouse cannot get around the prohibition by being sponsored as a common-law partner. It is not possible to establish a common-law relationship that meets the definition of common-law partner in terms of conjugality, as conjugality denotes exclusivity. Thus, unless the Canadian sponsor divorces or separates from the spouse or common-law partner and they have formed an intention not to continue with the previous relationship, the Canadian sponsor cannot establish a common-law relationship with the second spouse. For example, if the Canadian husband separates from the first wife and has been living with the second wife in a bona fide conjugal relationship for over a year, the husband and the second wife could potentially meet the definition of common-law partner. If the Canadian husband subsequently divorces the first wife, or the first wife is deceased, the husband can choose to remarry the second wife or form a common-law relationship with the second wife.
This article is for information purpose only and not a substitute for legal advice. Please speak with an immigration lawyer for detailed analysis of your situation.
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