The federal Divorce Act applies to all divorces in Canada. This law provides that “breakdown of the marriage” the only ground for a divorce anywhere in Canada.
A breakdown of the marriage means either:
- separation for at least one year
- physical or mental cruelty
Separation for at least one year
Living “separate and apart” from your spouse for one year establishes a breakdown of the marriage, which is grounds for a divorce. Living “separate and apart” usually means living in separate residences, but for financial or other reasons some couples will continue to live separate and apart at the same address. It is the intent of the parties that matters: do they consider themselves a couple, or are they two people who happen to live under the same roof?
When does the one-year period of separation start?
Usually when you tell your spouse you want to separate. Your spouse doesn’t even have to agree to the separation. The only issue is whether you want to separate. Again, it is the intent that matters.
A couple who have separated can get back together or “reconcile” to try to make the marriage work again. If the reconciliation doesn’t work and lasts 90 days or less, the couple can continue to count the one-year period starting from the date of the original separation. But if they stay together for more than 90 days, they have to start counting the one year again.
When can you get the divorce papers started?
Even though you have to have lived separate and apart for more than a year in order to get a divorce, you can start the paperwork any time after you have separated. If your spouse is leaving the province or the country, or may be hard to find in the future, it is best to start the process as soon as possible.
What about adultery and cruelty?
Adultery and cruelty are both “marital offences” and grounds for divorce.
Adultery is defined as having willing sexual intercourse with someone not your spouse. Cruelty means that your spouse’s behaviour toward you made it unbearable or intolerable for you to go on living together. Cruelty can be either physical or mental. Mental cruelty is more difficult to prove than physical cruelty. Unless it’s an extreme case, it may be difficult to prove.
Even if you can get a divorce on the grounds of adultery or cruelty, it is often better just to wait a year and get one based on a one-year separation. Divorces based on separation are usually cheaper and less contentious. If your spouse fights the adultery or cruelty allegations, the whole process will get dragged out and likely take more than a year to complete anyway. So it is often best just to wait instead of alleging adultery or cruelty.
Also, a judge will not grant a divorce if there has been collusion, connivance, condonation, or if insufficient provisions have been made for the care and support of any children of the marriage.
What the heck are collusion, connivance and condonation?
Collusion is when you and your spouse agree to lie to the court about a material fact (such as whether adultery has occurred).
Connivance is when one of you encourages the other one to commit a marital offence (like adultery) so you can get a divorce.
Condonation is when you have forgiven your spouse for committing adultery or being cruel. If you learn your spouse has committed adultery but forgive him or her and decide to stay together anyway, you have committed “condonation” in the legal sense, and will not be able to get a divorce based on that adultery.
Insufficient provisions have been made for the care and support of any children of the marriage
Insufficient provisions have been made for the care and support of any children of the marriage is a much more common reason for a judge to refuse to grant a divorce.
The law says that before a judge can grant a divorce, the judge must be satisfied that appropriate arrangements have been made for the financial support of any children of the marriage. This often means a provision that the non-custodial parent will pay at least the guideline amount of child support. Even if both spouses agree that less child support will be paid, a judge may refuse to grant the divorce.