In order to dissolve a marriage, a divorce must be obtained. If you are separated, but not yet divorced, you are still married!
Q. On what grounds can I apply for a divorce?
Marriage breakdown is the only grounds for divorce. A marriage breakdown may be proven by either a separation of no less than one (1) year, adultery or cruelty. The court must be satisfied that there is no reasonable prospect of reconciliation. If you consult with a lawyer, that lawyer has an obligation to ensure that there is no reasonable prospect of reconciliation and if there is, refer you to mediation or counselling.
Q. When can I apply for a Divorce?
An application for divorce may be commenced any time after spouses separate, however, a divorce will not be granted by a judge until the spouses have been separated for at least one (1) year, provided that the spouses’ evidence of marriage breakdown is separation for at least one (1) year. This is not the case where the evidence relied upon for a marriage breakdown is adultery or cruelty. Cruelty has the highest evidentiary threshold and is very difficult for spouses to prove. That being said, in most cases, spouses rely upon separation as opposed to adultery or cruelty, notwithstanding the fact that the other spouse may have committed adultery or subjected the applicant to intolerable cruelty.
Q. What if I want to try and work things out with my spouse?
The Divorce Act encourages spouses to reconcile and in fact gives spouses the right to cohabit for a single period of time or several periods of time totalling no more than 90 days after the separation begins for the purpose of reconciliation without interrupting the period during which they lived separate and apart. In other words, separated spouses are allowed a trial period of 90 days to reconcile without cutting short the required one (1) year separation time.
Q. Where can a spouse apply for a divorce?
There are jurisdictional requirements for a court to hear an application for divorce. Either spouse must have resided in the province in which the application is brought for at least one (1) year prior to the issuing of the application for divorce.
Q. What proof is required?
In order to obtain a divorce, the applicant must first prove that the spouses were married to each other. This is normally done by filing a marriage certificate or registration of marriage with the court. Where it is impossible to obtain the marriage certificate, the applicant must state so in the motion record at the time the divorce judgment is sought. The original marriage certificate may be filed, or a certificate from the Office of the Registrar General.
Q. What if my spouse and I were married outside of Canada?
If the spouses were married in a foreign country and the marriage certificate is written in a foreign language, a certified translation of the marriage certificate must be provided to the court. If the marriage certificate is in a country where records are destroyed and therefore it is not attainable, this evidence must be made available to the court in the motion record.
DISCLAIMER: The foregoing material is not intended to and should not be taken or relied upon as legal advice by the author. It is general information provided by the author to the reader with a cautionary note to seek legal advice with respect to any questions or concerns the reader may have in respect of their own family law issues or the content of this material.