Divorce Laws in Canada: Grounds for Divorce in Canada

Divorce laws in Canada were officially established in 1986. Prior to that, adultery was the only grounds for divorce in Canada. The Divorce laws in Canada of 1986 recognize only one ground for divorce: the breakdown of the marriage. What constitutes breakdown?

  • Spouses have lived apart for one year prior to filing for divorce
  • Adultery
  • Physical and mental cruelty

The first one falls under no-fault divorce and either spouse can file for a no-fault divorce. Both spouses can formally file for a divorce even before the one year period, but the divorce judgment is given only after the one-year period.

The last two (adultery and cruelty) fall under fault-based divorce and the one-year waiting period is waived. It is, however, only available to the spouse who is not at fault.

In general the grounds used by applicants are living separate and apart for one year, this option is the most effective cost option and where there is a Separation Agreement, they know the divorce will go through uncontested. Lawyers then file the proper paperwork with the court and the material is returned a few months later.

In the application used in the divorce laws in Canada, there are times that lawyers indicate the incidences of abuse, as well as adultery.

For instance, if a parent is having a relationship outside the marriage that affects the children, lawyers will look at adultery. Money spent as a result of the adulterous relationship, i.e. traveling to and from different countries or moving money to support that other person, is also considered. Other than that, adultery really does not factor into the court proceedings.

Some Questions you may want to ask yourself before going to a lawyer:

  • Do I need a divorce?
  • There is no legal requirement for you to become divorced unless you want to remarry. Many people however get divorced simply to bring closure.

  • Will I have to appear in court?
  • Probably not. Court appearances are usually reserved for defended or complex divorce actions.

  • Can I get divorced if I do not know the whereabouts of my spouse?
  • Perhaps, but certain steps must be taken before the court will allow you to proceed. You will need to employ a lawyer.

  • Do I need a lawyer to get a divorce?
  • No. Just as with any law suit, anyone can act for himself or herself. However, if you want anything other than the divorce itself you would be well advised to consult with a lawyer. In many cases people getting divorced also have issues relating to children, support or property to be dealt with. In those cases you should see a lawyer experienced in family law matters to make sure your rights are being fully protected.

  • Can I get my divorce if there are still things we have not settled?
  • Yes. The divorce laws in Canada make a distinction between the act of getting people freed from the legal relationship of marriage and finalizing the various other issues that may still exist between them such as spousal support, child support, custody and access. These collateral issues can be dealt with after a divorce or as part of the divorce proceedings, but after the divorce itself has been granted. This allows parties who want to remarry to do so without forcing them to first settle the corollary issues.

  • What matters are dealt with in the divorce proceedings?
  • Bringing the legal relationship of marriage to an end is the chief function of the divorce proceeding. Divorce laws in Canada allow the court to deal with issues of spousal support, child support, custody and access.

  • What is an uncontested divorce?
  • Most often the divorce itself is not contested. The party being served with the divorce documents may choose not to oppose the request for

    a divorce and not file any responding material. Normally where parties have already negotiated the terms of their separation and have a separation agreement, marriage contract or cohabitation agreement. The divorce judgment in these cases may include the terms already agreed upon or not make any reference to anything but the divorce itself.

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