Home Divorce When Love Doesn’t “Survive”: The Technicalities of a Same Sex Divorce

When Love Doesn’t “Survive”: The Technicalities of a Same Sex Divorce


Richard Hatch, winner of the first ever season of the hit reality series “Survivor,” has split from his husband of 14 years. You might remember Richard Hatch as the one who preferred to play the game ‘au naturel’.

Richard Hatch and Emiliano Carbal tied the knot in Nova Scotia in 2005 – but had an intimate ceremony amongst themselves in 2003.

The reason for their split? Carbal has met someone else much younger! So now, Hatch and Carbal are headed for a divorce.

Of relevance here is the fact that Hatch and Carbal – supposedly residents of the United States of America – were married in Nova Scotia, Canada in 2005 – long before same-sex marriage was legal in the US. So, if they wanted a divorce pre- June 26, 2015 (when same-sex marriage was legalized in the US), they would have been unable to obtain one in the US because their marriage wasn’t yet considered “valid”.

SO, what would have happened if Carbal had met his younger beau pre-2015 or if either, Hatch or Carbal, had called it quits sooner?

Well, although Canada’s Divorce Act has a fairly strict residency requirement – whereby parties can only obtain a divorce if they are habitually resident in a Canadian province for 12 months – section 7 of the Civil Marriages Act, 2005 provides that “the court of the province where the marriage was performed may, on application, grant the spouses a divorce” on the following conditions:

  • There has been a breakdown in the marriage as established by the spouses having lived separate and apart for at least one year;
  • Neither spouse resides in Canada at the time the Application is made; and
  • Each of the spouses is residing – and for at least one year immediately before the application is made, has resided – in a state where a divorce cannot be granted because that state does not recognize the validity of the marriage.

It is important to note that where non-resident spouses are granted a divorce pursuant to section 7 of the Civil Marriages Act, 2005, spouses cannot bring claims for corollary relief (i.e. support) under the Divorce Act.

Also noteworthy is the fact that in Canada, the same Divorce laws apply to all married people (irrespective of gender and/or sexual orientation).

Regardless of this intricate timing issue, it seems as though this Survivor All-Star and winner didn’t have what it takes to “outwit, outplay, and outlast” a younger man.

Andrew Feldstein The Feldstein Family Law Group (FFLG) is one the largest family law firms that practices Family Law exclusively in Greater Toronto, with 10 lawyers and counting. The boutique law firm has won the Top Choice Award for Family Law™ in Toronto for the past eleven years (2007 to 2018 inclusive). Managing Partner Andrew Feldstein has been practicing family law for more than 20 years and frequently comments on Family Law issues through the media. The Feldstein Family Law Group offers vast written, video, and media resources on its website to those who find that they need to end their relationship.