Requirements for Divorce and Annulment (Script 120)

From Clicklaw Wikibooks

This script only applies to married spouses. Unmarried spouses and other unmarried couples do not need to get a divorce and, because they are not married, cannot get an annulment.

What is a divorce?

A divorce is a court order, made under the Divorce Act, that ends a marriage. Only married spouses need to get a divorce to end their relationship; unmarried spouses and other unmarried couples do not need to divorce. Their relationships are over when they separate.

Some religions allow for religious or ritual divorces. These divorces do not legally terminate a marriage. In the eyes of the law, you and your spouse will remain married until a judge makes a divorce order.

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 are 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, called “cruelty” in the Divorce Act, 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 can 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 one spouse tells the other that he or she wants to separate. The decision to separate can be made by one or both spouses. It is not necessary for both spouses to agree to the separation.

What if you reconcile for a short time?

Spouses are separated can get back together and live together again to try 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.

Which court do I go to?

Although there are two courts that deal with family law problems, the Family Court and the Supreme Court, only the Supreme Court can make divorce orders and other orders under the Divorce Act. If you want a divorce, you will need to start a divorce proceeding in the Supreme Court.

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 other orders you want the court to make, you can apply for the divorce 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 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. 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 will 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. You should speak to a lawyer 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 making the divorce order without having to wait for the one-year period of separation to pass. 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 a financial award called “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 speak to 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:

  • collusion
  • connivance
  • condonation
  • 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, to get a divorce. For example, if a couple agrees that they will lie about the date of separation to speed up the divorce process.

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 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. Most of the time, this means that child support is being paid in the amount required by the Child Support Guidelines, whether because of a court order or a separation agreement. Refer to script 117 on “Child Support” for more information on this.

What is annulment?

A divorce is a court order which ends a valid marriage. An annulment is a court declaration that a marriage is invalid. If the court declares that, it is unnecessary to get a divorce.

For example, a marriage might be invalid if one spouse was already married when he or she married the other person, if one of the spouses was under the age of 16 at the time of the marriage ceremony, 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. It is important to know that even if a marriage is annulled, the parties are still able to make claims against each other about the parenting of children, the payment of support and the division of property and debt under the Family Law Act.

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 allow for religious annulments. These annulments do not legally void a marriage. In the eyes of the law, you and your spouse will remain married until a judge makes a declaration of annulment.

Summary

To get a divorce, you must prove that your marriage has broken down. The reasons for marriage breakdown are 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 arrangements have been made for the financial support of the children. If the marriage was invalid, an annulment may be granted instead of a divorce.

More information

  • For a step-by-step description of the desk order divorce process see script 121.
  • For a description of the process and copies of the necessary court forms, see the Divorce page of the wikibook JP Boyd on Family Law, provided by Courthouse Libraries BC. More information about invalid and void marriages is available at Marriage & Married Spouses.


[updated October 2014]

The above was last reviewed for accuracy by JP Boyd.


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