I WANT A DIVORCE – WHAT NOW?

The Divorce Act (1985) governs the granting of a Divorce Judgment along with other relief including the custody, access, and maintenance of any children, and the maintenance of a spouse. The Court will grant a Divorce Judgment on the grounds that there has been a breakdown of the marriage. Breakdown of a marriage is shown by:

(a) One year separation

This means that the parties live separate and apart for at least one year preceding the date of the application for the Divorce Judgment and were living separate and apart at the time the Divorce Action was commenced. It is not necessary for the one year to have lapsed before the parties can start the Divorce Action. The action may be started immediately on separation and only completed when the period expires.

The parties must live separate with at least one party having the intention to end the marital relationship.

It is possible to live separate and apart in the same house; however, this is only where parties have completely withdrawn from any matrimonial obligations and live almost as roommates.

The period of living separate and apart will not be interrupted if the parties resume cohabitation for a period or periods totaling not more than 90 days with reconciliation as the primary purpose.

(b) Adultery

Adultery is defined as an act of sexual intercourse during the course of the marriage with a person of the opposite sex, who is not your spouse. Only the party who did not commit adultery may petition for the Divorce on adultery.

The onus of proving the adultery committed is upon the party alleging it. The adulterer may swear an Affidavit admitting the adultery; however, no one can be forced to make an admission of adultery.

(c) Physical and/or Mental Cruelty

This ground arises where one party has treated the other party with physical and/or mental cruelty.

With respect to mental cruelty, the cruelty must be of such a degree as to render the future cohabitation of the parties intolerable. Mere incompatibility is not sufficient for this ground.

Jurisdiction

The Court can hear a Divorce proceeding if either spouse was ordinarily a resident in that province for at least one year preceding the commencement of the Divorce action. Therefore, a spouse who is not living in Canada and is not ordinarily resident in a Province can start a Divorce in the Province where the other spouse is ordinarily resident for at least one year.

"Ordinarily resident" is generally considered to be where the person regularly, normally, and customarily lived immediately preceding the commencement of the Divorce proceedings.

Effective Date of Divorce

A Divorce will take effect 31 days after the date on which the Judgment granting the Divorce is rendered. If there is an appeal, the Divorce takes effect when the appeal process is complete. This period can be shortened if the Divorce should take effect by reason of special circumstances and the spouses agree and undertake that there will be no appeal.

The Court has a duty to satisfy itself that there is no possibility of reconciliation. Any communications or admissions made during the course of attempts to achieve reconciliation are not admissible as evidence.

The Court also has a duty to satisfy itself that reasonable arrangements can be made with respect to the support of the children. If reasonable arrangements have not been made for the children, the Court must stay the granting of the Divorce until such arrangements are made.

This Article is provided as a public service and is not intended to be legal advice. For further information please contact our offices.

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