A woman who married her same-sex partner in Burnaby 11 years ago found herself facing a “legal hurdle” after trying to divorce without her ex’s consent last year.

The woman, identified in a recent decision from the Supreme Court of British Columbia HYC and his partner MKH got married in Canada because Hong Kong, where they lived, did not recognize same-sex marriage.

However, as Hong Kong still does not recognize same-sex marriage, HYC was also unable to divorce there after the couple stopped living together in July 2021, according to the ruling.

“Non-resident spouses married in Canada and residing in a state where they cannot obtain a divorce find themselves in a legal bind of not being able to obtain a divorce,” said the British Columbia Supreme Court justice , David Jones, in the decision.

And when HYC filed an application with the British Columbia court last October, its application was also rejected.

Indeed, British Columbia rules require that a person seeking a divorce without consent have “a certified copy of an order of a court in the jurisdiction in which one spouse resides” declaring that the other spouse is unable to make decisions regarding his marriage due to mental disability; unreasonably refuses consent; or not found.

Because both women live in Hong Kong, which will not issue an order because it does not recognize same-sex marriage, HYK is blocked, according to the ruling.

Jones noted there was a “difference” between British Columbia’s rules and the Civil Marriage Act, the federal law, which legalized same-sex marriage across Canada in 2005.

Since an amendment in 2013, federal law allows the required order to come from a Canadian court, putting British Columbia’s rules at odds with the Civil Marriage Act.

But Jones ultimately granted HYC a divorce, claiming that HYC had met the legal requirements of federal law even though it did not meet the requirements of British Columbia.

Jones said courts should “favor harmonious interpretations of federal and provincial laws” and that the “context” of the Civil Marriage Act is important in interpreting B.C.’s rules.

“While Parliament has understood the importance of allowing same-sex couples to legally marry in a civil manner, it has also recognized that same-sex couples may also need access to legal civil divorce,” Jones said, citing a previous case.

Jones highlighted HYC’s efforts to contact his ex and obtain consent to divorce, including sending WhatsApp messages, emails, phone calls and slipping documents under the door of his residence.

She received no response and Jones ruled that her spouse was “unreasonably” withholding consent.

Their divorce became effective on the date of Jones’ decision, October 22.

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