Under Canadian Immigration law, the Canadian residents and permanent residents can sponsor their relatives to come to Canada. This immigration scheme gives the relatives or the family members of the Canadian residents to acquire permanent residence.
Polygamy is permitted for Muslims in many countries including but not limited to India, Malaysia, Philippines, and Singapore and some African countries. Given the legal issues that may arise while processing a polygamous marriage in Canada, this blog-article aims to articulate what one needs to be aware of when sponsoring a polygamous spouse under family class.
As Canadian Family law stands firm against polygamous marriages pursuant to section 293 of the Criminal Code, a foreign polygamous marriage may bring about a predicament for a Canadian sponsor.
Section 117(9)(c)(i) of Canada’s Immigration and Refugee Protection Regulations (IRPR) has specified that a sponsor is not a member of the family class if the spouse or sponsor was already married to a different person at the time of the subsequent marriage. This rule mitigates the unnecessary acknowledgment of second or third wife as a spouse within the family class.
Conversion Of Polygamous Marriage Into Monogamous Marriage
For the recognition of a first marriage by Canadian law, the couple is required to live together in a monogamous marriage in Canada. Common law confers that a polygamous marriage can be converted to a monogamous marriage supposing that the couple lives together from the time of arrival in Canada. This conversion takes place if the couple exhibits their intention to do so, accompanied by some genuine evidence that they have complied – typically by divorcing the other spouse or remarrying the first spouse.
What If The Canadian Husband Desires 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. If the husband intends to sponsor his partner other than his first wife as a second wife, he is required to divorce other wives and remarry the chosen wife in a form that is recognized in Canada. He and his chosen wife must sign a declaration for that declaration to be valid.
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 the family class. All other spouses would be considered ‘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 illegal, the second spouse cannot pass over the prohibition by being sponsored as a common-law partner. It is not possible to establish a common-law relationship that satisfies the definition of common-law partner in terms of conjugality, as conjugality symbolises 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.
Get In Touch With Us!
Undoubtedly, there are a broad range of issues associated with sponsoring a polygamous spouse, therefore, the services of a prudent immigration consultant are highly recommended. For detailed analysis of your situation, please speak with one of our lawyers at Ayaz Mehdi Professional Corporation.
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