Divorce
A divorce is the legal process by which a valid marriage is dissolved. Separation agreements and court orders resolve family matters when a separation occurs but they do not legally end a marriage. The only way to do so is to get a divorce. Divorce in Canada is regulated by the Divorce Act.
Grounds for Divorce
The Divorce Act provides that the only ground needed for divorce is the “breakdown of the marriage”. The breakdown is established in one of two ways:
- If the two people have lived apart for at least one year before they started to file for divorce, and they were still living apart when they began to file for divorce
- If the person who is not filing for divorce has either committed adultery while they were married or they have been abusive (physically and emotionally) to their spouse
Ground of “Living Separate and Apart”
For divorce to be file on this ground, the two people have to have lived apart for at least one year before they started to file for divorce, and they were still living apart when they began to file for divorce. But this does not necessarily mean that the two people have to be living in separate homes. There are cases where “living separate and apart” can mean things like not sleeping together, no sexual relations, no communication and no activities together.
Ground of adultery
Adultery is a fault based ground so the party that committed the adultery cannot file for divorce of the grounds of their own adultery. It has to be the party that did not commit adultery who files for divorce. This ground is rarely used because of the proof required for adultery and most people just wait one year after separation to apply for divorce.
Ground of cruelty
Another rare ground for divorce is cruelty where the claiming party has to show that the cruelty inflicted is “physical and mental cruelty of such kind as to render intolerable the continued cohabitation of the spouse”.
Bars to divorce
Notwithstanding that one year has past since the separation, a court can refuse to allow a divorce in certain limited circumstances. For example, a court may suspend the granting of a divorce until reasonable arrangements are made to support the children.
Divorce procedure
If both parties agree to a divorce and agree on all issues, then it is an uncontested divorce which can be easily achieved by filing the necessary documents. A judge still has to determine that the grounds for divorce exist, but this is done “in chambers” and neither of the spouses are required to attend court. If the parties cannot agree on the terms of the divorce, they can go to court and the court will make a decision.
