Requirements for Divorce and Annulment: Difference between revisions

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{{Dial-A-Law TOC|expanded = family}}
{{Dial-A-Law TOC|expanded = family}}
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 ending a valid marriage. Annulment is a court order declaring a marriage to be invalid. Each order is granted only if certain requirements are met.  
A divorce is a court order under the ''[https://laws-lois.justice.gc.ca/eng/acts/D-3.4/ 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.
Understand your legal rights


A divorce order is necessary to remarry.
Married spouses need to divorce to end their legal relationship


==What are the grounds for getting 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.
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.
Some religions allow for religious or ritual divorces. These divorces do not legally end a marriage. In law, you and your spouse remain married until a court makes a divorce order.


==What does it mean to be separated for a year?==
A married spouse will need to get a divorce order if they ever want to remarry.
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?==
The grounds for getting a divorce
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?==
The Divorce Act applies to all divorces in Canada, whether you were married in Canada or elsewhere. Under the Divorce Act, to get a divorce, you must prove your marriage has broken down. You can show marriage breakdown in one of three ways:
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 [[Separation and Separation Agreements (Script 115)|115]] on “Separation and Separation Agreements” has more on separation.
•the spouses are separated and have lived separate and apart for at least one year


==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?==
•one spouse has committed adultery which the other spouse did not approve of or accept
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.
•one spouse has been mentally or physically abusive to the other spouse, called “cruelty” in the Divorce Act, which has made living together intolerable


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


==Adultery==
Most people ask for a divorce order based on having lived separate and apart for at least one year. To claim a divorce based on adultery or cruelty, you must be able to prove the adultery or cruelty occurred. That can be difficult if the other spouse does not agree.
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==
Living separate and apart
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?==
Separation usually means living in separate places. However, 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 as a couple.
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.
When separation starts


==Why would a judge not grant a divorce?==
Separation starts when one spouse tells the other 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.
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 [[Child Support (Script 117)|117]] on “Child Support” has more on this.


==What is annulment?==
If you reconcile for a short time
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''.
Spouses that are separated can get back together and live together again to try and make the marriage work. Within the one-year separation period, they can get back together in a marriage-like relationship for up to 90 days without restarting the clock on the date of separation. If they live together for more than 90 days, the one-year period of separation starts over if they later break up again. For more details, see our information on separation and separation agreements (no. 115).
 
Starting divorce proceedings
 
When you can start divorce proceedings
 
You can sue for divorce any time after you have separated. (To bring divorce proceedings in BC, you do need to have lived in the province for at least one year.) 
 
Which court you sue in
 
Two courts deal with family law in BC, Provincial Court (also called Family Court) and Supreme Court. But only Supreme Court can make divorce orders under the Divorce Act. If you want a divorce, you must sue in Supreme Court. 
 
A desk-order divorce allows you to avoid going to court
 
A desk-order divorce is a process that lets you get a divorce order without going to court. Once you and your spouse have agreed on the various issues that need to be resolved, you can apply for the divorce order by filing several court forms. These forms  include:
•a requisition for the order (this is a document asking for the divorce order)
 
 
•an affidavit of service saying your spouse was personally served with the documents beginning the court case (an affidavit is a legal document where a witness makes statements about facts they say are true)
 
 
•your affidavit giving the court your evidence in support of the divorce order
 
 
•a draft of the divorce order
 
 
 
If you have children, you will also have to file an affidavit dealing with child support. This affidavit 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 documents together in support of the divorce.
 
We explain the desk-order process in more detail in our information on desk-order divorce (no. 121).
 
Situations where the court will not grant a divorce
 
The court will not grant a divorce in certain situations.
 
Collusion or connivance
 
If you try to deceive the court, the court will not grant a divorce. 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, if a couple agree they will lie about the date of separation in order 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
 
Forgiving your spouse’s conduct may prevent a divorce from being granted. 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 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, either under a court order or a separation agreement. Our information on child support (no. 117) has more on this.
 
Annulment is a court order declaring a marriage invalid
 
An annulment means that, according to the law, you and your partner were not actually married. 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.
 
Circumstances that can make for an invalid marriage include:
•if one spouse was already married when they married the other person
 
 
•if one of the spouses was under age 16 at the time of the marriage ceremony
 
 
•if a spouse married someone other than the person they intended to marry  
 
 
 
Effect of annulment
 
If the court annuls a marriage, it is as if the marriage never happened.  
 
Even if a marriage is annulled, 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.
 
Foreign marriages


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.
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.
Some religions allow for religious annulments. These annulments do not legally annul a marriage or divorce people. The people remain married until a court declares an annulment.
 
Common questions
 
How is adultery proven in a divorce proceeding?
 
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 in court about the adultery. This 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.
 
What kind of behaviour does cruelty include?
 
You can establish the breakdown of a marriage by showing cruelty that makes living together intolerable. Cruelty can be either physical or mental. You have to prove 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 basing a divorce on adultery or cruelty?
 
Establishing the breakdown of a marriage by showing adultery or cruelty means the court can make the divorce order sooner. The court doesn’t have to wait until you’ve lived separate and apart for one year.
 
The court does not consider adultery or cruelty when it divides property or awards support. It will consider adultery or cruelty when deciding about children if the behaviour affects a spouse’s ability to parent the children or a spouse’s ability to become self-supporting after separation.
 
In some cases, you can claim damages (money to compensate you for a loss or injury) 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.
 
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 various issues that need to be resolved: parenting arrangements, child support, spousal support, and division of family property and debt. All these issues must be resolved before a court will make a divorce order, except in special circumstances.
 
 
Once the various issues are resolved, a divorce can take three to six months to finalize, depending on what steps have already been taken and how busy the court registry is. It may be faster if an 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.
 
Get help
 
With more information


==How long does it take to get a divorce?==
The wikibook JP Boyd on Family Law explains the requirements for divorce in detail.
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==
Web: wiki.clicklaw.bc.ca
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==
*Check script [[Desk Order Divorces: The Do-It-Yourself Divorce Process (Script 121)|121]] for a step-by-step description of the desk order divorce process.
*Check the [http://wiki.clicklaw.bc.ca/index.php?title=Divorce Divorce page] of ''JP Boyd on Family Law''.
*Check the [http://wiki.clicklaw.bc.ca/index.php?title=Marriage_%26_Married_Spouses Marriage & Married Spouses page] for information about invalid and void marriages.




Line 93: Line 157:
[updated October 2018]
[updated October 2018]


'''The above was last reviewed for legal accuracy by Samantha de Wit of Brown Henderson Melbye, and edited by John Blois.'''
'''The above was last reviewed for legal accuracy by Samantha de Wit, Brown Henderson Melbye and Zahra H. Jimale, Jimale Law Corporation.'''


----
----

Revision as of 22:12, 21 January 2019

A divorce is a court order ending a valid marriage. Annulment is a court order declaring a marriage to be invalid. Each order is granted only if certain requirements are met.

Understand your legal rights

Married spouses need to divorce to end their legal relationship

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 end a marriage. In law, you and your spouse remain married until a court makes a divorce order.

A married spouse will need to get a divorce order if they ever want to remarry.

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, to get a divorce, you must prove your marriage has broken down. You can show marriage breakdown in one of three ways: •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 order based on having lived separate and apart for at least one year. To claim a divorce based on adultery or cruelty, you must be able to prove the adultery or cruelty occurred. That can be difficult if the other spouse does not agree.

Living separate and apart

Separation usually means living in separate places. However, 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 as a couple.

When separation starts

Separation starts when one spouse tells the other 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.

If you reconcile for a short time

Spouses that are separated can get back together and live together again to try and make the marriage work. Within the one-year separation period, they can get back together in a marriage-like relationship for up to 90 days without restarting the clock on the date of separation. If they live together for more than 90 days, the one-year period of separation starts over if they later break up again. For more details, see our information on separation and separation agreements (no. 115).

Starting divorce proceedings

When you can start divorce proceedings

You can sue for divorce any time after you have separated. (To bring divorce proceedings in BC, you do need to have lived in the province for at least one year.)

Which court you sue in

Two courts deal with family law in BC, Provincial Court (also called Family Court) and Supreme Court. But only Supreme Court can make divorce orders under the Divorce Act. If you want a divorce, you must sue in Supreme Court.

A desk-order divorce allows you to avoid going to court

A desk-order divorce is a process that lets you get a divorce order without going to court. Once you and your spouse have agreed on the various issues that need to be resolved, you can apply for the divorce order by filing several court forms. These forms include: •a requisition for the order (this is a document asking for the divorce order)


•an affidavit of service saying your spouse was personally served with the documents beginning the court case (an affidavit is a legal document where a witness makes statements about facts they say are true)


•your affidavit giving the court your evidence in support of the divorce order


•a draft of the divorce order


If you have children, you will also have to file an affidavit dealing with child support. This affidavit 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 documents together in support of the divorce.

We explain the desk-order process in more detail in our information on desk-order divorce (no. 121).

Situations where the court will not grant a divorce

The court will not grant a divorce in certain situations.

Collusion or connivance

If you try to deceive the court, the court will not grant a divorce. 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, if a couple agree they will lie about the date of separation in order 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

Forgiving your spouse’s conduct may prevent a divorce from being granted. 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 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, either under a court order or a separation agreement. Our information on child support (no. 117) has more on this.

Annulment is a court order declaring a marriage invalid

An annulment means that, according to the law, you and your partner were not actually married. 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.

Circumstances that can make for an invalid marriage include: •if one spouse was already married when they married the other person


•if one of the spouses was under age 16 at the time of the marriage ceremony


•if a spouse married someone other than the person they intended to marry


Effect of annulment

If the court annuls a marriage, it is as if the marriage never happened.

Even if a marriage is annulled, 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.

Foreign marriages

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 court declares an annulment.

Common questions

How is adultery proven in a divorce proceeding?

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 in court about the adultery. This 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.

What kind of behaviour does cruelty include?

You can establish the breakdown of a marriage by showing cruelty that makes living together intolerable. Cruelty can be either physical or mental. You have to prove 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 basing a divorce on adultery or cruelty?

Establishing the breakdown of a marriage by showing adultery or cruelty means the court can make the divorce order sooner. The court doesn’t have to wait until you’ve lived separate and apart for one year.

The court does not consider adultery or cruelty when it divides property or awards support. It will consider adultery or cruelty when deciding about children if the behaviour affects a spouse’s ability to parent the children or a spouse’s ability to become self-supporting after separation.

In some cases, you can claim damages (money to compensate you for a loss or injury) 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.

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 various issues that need to be resolved: parenting arrangements, child support, spousal support, and division of family property and debt. All these issues must be resolved before a court will make a divorce order, except in special circumstances.


Once the various issues are resolved, a divorce can take three to six months to finalize, depending on what steps have already been taken and how busy the court registry is. It may be faster if an 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.

Get help

With more information

The wikibook JP Boyd on Family Law explains the requirements for divorce in detail.

Web: wiki.clicklaw.bc.ca



[updated October 2018]

The above was last reviewed for legal accuracy by Samantha de Wit, Brown Henderson Melbye and Zahra H. Jimale, Jimale Law Corporation.


Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International Licence Dial-A-Law © People's Law School is licensed under a Creative Commons Attribution - NonCommercial - ShareAlike 4.0 International Licence.