Requirements for Divorce and Annulment (Script 120)

From Clicklaw Wikibooks

This script only applies to married spouses. Unmarried spouses 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 under the Divorce Act that ends a valid marriage. Only married spouses can get a divorce; unmarried spouses cannot and do not need to divorce. Their relationships end when they separate.

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

A divorce order is necessary to remarry.

What are the grounds for getting a divorce?

The Divorce Act applies to all divorces in Canada, whether you were married in Canada or elsewhere. Under the Divorce Act, the only reason required for a divorce order is marriage breakdown. People can show marriage breakdown by showing any of the following 3 grounds:

  • the spouses are separated and have lived separate and apart for at least one year
  • one spouse has committed adultery which the other spouse did not approve of or accept
  • one spouse has been mentally or physically abusive to the other spouse, called cruelty in the Divorce Act, which has made living together intolerable

Most people ask for a divorce based on separation of at least one year. To claim a divorce based on adultery or cruelty, you must prove, or have the other spouse agree in the court record, that the adultery or cruelty occurred, and that can be hard if the other spouse does not agree.

What does it mean to be separated for a year?

Separation usually means living in separate places. But some couples can be separated yet still live in the same home, as long as the marriage-like quality and intimacy of their relationship has ended. For example, they no longer sleep together, do chores for each other, eat meals together, or go to family events together as a couple.

When does the one-year period of separation start?

Separation starts when one spouse tells the other that they want 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 who separate can get back together and live together again to try to make the marriage work. But within the one-year separation period, they can only live together in a marriage-like relationship for a 90 days or less to avoid having to restart the clock on the date of separation. 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. Script 115 on “Separation and Separation Agreements” has more on separation.

When can you start divorce proceedings?

You can sue for divorce any time after you have separated, as long as you have lived in the province where you are suing for at least one year immediately before you sue.

Which court should you go to?

Although two courts deal with family law in BC (Provincial Court and Supreme Court), only Supreme Court can make divorce orders under the Divorce Act and orders on property and debt division under the Family Law Act. If you want a divorce, you must sue in Supreme Court. Provincial Court can make orders only under the Family Law Act, on parenting arrangements, child support and spousal support. Supreme Court can also make these orders.

What is a desk order divorce?

A desk order divorce is a court process that lets you get a divorce order without going to court. Once a court case has started, and if you and your spouse agree on the other orders you want the court to make, or you and your spouse have signed a separation agreement, you can apply for the divorce order by filing several court forms, including:

  • a Requisition asking for the divorce order
  • an Affidavit of Personal Service proving that your spouse was personally served with the documents beginning the court case
  • a draft of the divorce order
  • 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 more information about your income and your spouse’s income, and the arrangements for child support.

If you and your spouse agree, you can also seek a divorce jointly, which requires you to file a joint Notice of Family Claim and joint evidence in support of the divorce.

Script 121 on “Desk Order Divorces: The Do-It-Yourself Divorce Process” has more information.

Adultery

Adultery is when a spouse has sex with someone who isn’t their spouse. Adultery is usually proved by having the spouse who committed adultery admit it in an affidavit. If your spouse won’t admit to 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. It does not require the other party in the adultery to be a party to the court case, but you may want them to give evidence of the adultery.

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 harder to prove than physical cruelty. You should speak to a lawyer to see if you have enough evidence to prove cruelty.

Is there an advantage to proving adultery or cruelty?

The court can make the divorce order without waiting for a year of separation. The court will not consider adultery or cruelty when it divides property or awards support. It will consider adultery and cruelty only when deciding about children, if the behaviour affects a spouse’s ability to parent the children and a spouse’s ability to become self-supporting after separation.

In some cases, you claim a financial award called damages if you can prove an assault occurred. This is hard to do. You have to present medical evidence showing the nature of the injuries and their consequences. You should speak to a lawyer if you are thinking about claiming damages caused by your spouse’s cruelty.

Why would a judge not grant a divorce?

If spouses engaged in the following behaviours, a judge would not grant a divorce:

  • collusion
  • connivance
  • condonation
  • insufficient child support
  • Collusion is when spouses plan to lie to the court to get a divorce order. It can be either in an affidavit or through testimony. For example, a couple agree that they will lie about the date of separation to speed up the divorce.
  • Connivance is when one spouse encourages the other to commit adultery or tricks the other spouse into committing adultery to speed up the divorce.
  • Condonation is when one spouse has approved of the other spouse’s adultery or cruelty.
  • Insufficient child support: before granting a divorce order, a 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 Federal Child Support Guidelines, whether because of a court order or a separation agreement. Script 117 on “Child Support” has more on this.

What is annulment?

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

For example, a marriage might be invalid if one spouse was already married when they 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 they intended to marry. If the court finds that the marriage is invalid, it will declare that the marriage is invalid, as if it had never happened. Even if a marriage is annulled, the spouses can still 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 who deals with annulments in the country you are dealing with if you want to annul a foreign marriage.

Some religions allow for religious annulments. These annulments do not legally annul a marriage or divorce people. The people remain married until a judge declares an annulment.

How long does it take to get a divorce?

The time to get a divorce varies. It depends on how long it takes to settle the corollary relief: parenting arrangements, child support, spousal support, and division of family property and debt. All the corollary relief must be resolved before a court will make a divorce order, except in special circumstances. Once the corollary relief is resolved, then a divorce can take 3 to 6 months to finalize, depending on what steps have already been taken and how busy the court registry is. It may be faster if a court application for divorce is done through a court hearing. If you have a legitimate reason to speed up the process, for example, you are getting remarried, you should speak with a lawyer.

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


[updated October 2018]

The above was last reviewed for legal accuracy by Samantha de Wit of Brown Henderson Melbye, and edited by John Blois.


© Copyright 2018, Canadian Bar Association British Columbia Branch. Dial-A-Law is a registered trademark owned by Canadian Bar Association British Columbia Branch, a non-profit membership corporation.


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