Script 120 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral Service at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
This script only applies to married spouses. Unmarried spouses do not need to get a divorce and cannot get an annulment.
What are the grounds for getting a divorce?
The Divorce Act applies to all divorces in Canada, whether you were married inside Canada or elsewhere. Under the Divorce Act, the one reason why a divorce order can be granted is because of “marriage breakdown”. There are three reasons why marriage breakdown may have occurred:
- the spouses have separated and have lived separate and apart for at least one year
- one spouse has committed adultery which the other spouse hasn’t forgiven
- one spouse has been mentally or physically abusive to the other spouse, and that spouse can no longer continue in the marriage
Most people ask for a divorce based on separation. To claim a divorce based on adultery or cruelty, you must be able to prove that the adultery or cruelty occurred, and that can be difficult.
What does it mean to be separated for a year?
Separation usually means living in separate places. Some couples may be separated even though they continue to live under the same roof, as long as the “marriage-like” quality of their relationship has ended and they have stopped sleeping together, doing chores for each other, going to family events together and so on.
When does the one-year period of separation start?
The start of separation is usually when you tell your spouse you want to separate. Your spouse doesn’t even have to agree to the separation.
What if you reconcile for a short time?
Spouses who have separated can get back together and move back in to try to reconcile and make the marriage work. But within the one-year separation period, they can only live together for a total of 90 days or less. If they live together for more than 90 days, the one-year period of separation starts all over again from the date of the last separation. For more information on separation, refer to script 115 on “Separation and Separation Agreements”.
When can you get the divorce proceedings started?
You can begin a court case for divorce any time after you have separated, as long as you have lived in the province in which you are starting the court case for at least one year.
What is a “desk order” divorce?
A desk order divorce is a court process that allows you to get a divorce without appearing in court at a trial. Once a court case has started, and providing you and your spouse agree on the orders you want the court to make, you can apply for the order by filing a bunch of court forms, including a Requisition asking for the order, an Affidavit of Service proving that your spouse was served with the documents beginning the court case, a draft order, and your affidavit giving the court all the information it needs to decide if the divorce order is justified. If you have children, you will also have to file a Child Support Affidavit, which gives the court additional information about your income and your spouse’s income, and the arrangements that have been made for child support. Refer to script 121 on “Desk Order Divorces: the Do-It-Yourself Divorce Process” for more information.
What about adultery?
Adultery is when a spouse has sex with someone who isn’t his or her spouse. Technically, sex with someone else even after separation counts as adultery.
Adultery is usually proved by having the spouse who committed adultery admit it in an affidavit. If your spouse won’t admit to the adultery, then you have to prove it some other way, for example, by having your spouse or another witness testify about the adultery in court.
What about cruelty?
Cruelty can be either physical or mental. You have to prove that your spouse’s behaviour toward you made it impossible for you to go on living together. Mental cruelty is more difficult to prove than physical cruelty. Unless it’s an extreme case, you’ll probably need a lawyer’s opinion to see if you have enough evidence to prove mental cruelty.
Is there an advantage to proving adultery or cruelty?
Divorce is “no fault” in Canada, which means that the court rarely draws any conclusions from a spouse’s adultery or cruelty beyond granting a divorce. The court will not take adultery or cruelty into account in dividing property or awarding support, and it will only take such behaviour into account when making decisions about children if the behaviour actually affects a spouse’s ability to parent the children.
In certain circumstances, it is possible to make a claim for “damages” if you can prove an assault occurred. This is a difficult claim to make and involves presenting medical evidence demonstrating the nature of the injuries and the consequences of those injuries. You should consult a lawyer if you are thinking about making a claim for damages as a result of your spouse’s cruelty.
Are there reasons why a judge won’t grant a divorce?
Yes, they are:
- insufficient arrangements for child support
What do collusion, connivance and condonation mean?
Collusion is when you work with your spouse to lie to the court, either in an affidavit or through your testimony. For example, if a couple agrees that they will lie about the date of separation to speed up the divorce.
Connivance is when one spouse encourages the other spouse to commit adultery or tricks the other spouse into committing adultery to speed up the divorce.
Condonation is when you have forgiven your spouse for his or her adultery or cruelty. If you have forgiven your spouse, you cannot later use your spouse’s adultery or cruelty to claim a divorce.
What about insufficient child support?
Before granting a divorce, the judge must be satisfied that appropriate arrangements have been made for the financial support of the children. Refer to script 117 on “Child Support” for more information on this.
What is annulment?
A divorce is the court order which ends a valid marriage. An annulment is the court declaration that a marriage is invalid. For example, a marriage might be invalid if one spouse was already married when he or she married the other, if one of the spouses was under the age of 16 at the time of the marriage, or if a spouse married someone other than the person he or she intended to marry. If the court finds that the marriage is invalid it will make a declaration that the marriage is void as if it had never happened, and no divorce is necessary.
It is important to know that even where a marriage is annulled, the parties will be treated as “spouses” and “parents” under the provincial Family Relations Act, which means that the parties can make claims against each other about the care and control of children, the payment of support and the division of assets. As well, the law about the annulment of foreign marriages is complicated. You should speak to a lawyer if you are thinking about trying to annul a foreign marriage.
Some religions grant religious annulments. These annulments are valid within that religion but do not legally void a marriage. In the eyes of the law, you and your spouse will remain married until a judge makes a legal declaration of annulment.
To get a divorce, you must prove marriage breakdown. This can be separation for one year, your spouse’s adultery or your spouse’s cruelty toward you. Efforts to deceive the court through collusion or connivance, or your forgiveness of your spouse’s conduct may prevent the divorce from being granted. In all cases, before granting a divorce the judge must be satisfied that appropriate support arrangements have been made for the children. If the marriage was invalid, an annulment may be granted instead of a divorce.
[updated March 2013]
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