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Difference between revisions of "Divorce Act Basics"
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The rules about spousal support are very similar between the two laws, except that under the ''Family Law Act'' spousal support is also available to couples that aren't married to each other. | The rules about spousal support are very similar between the two laws, except that under the ''Family Law Act'' spousal support is also available to couples that aren't married to each other. | ||
Under the ''Family Law Act'', however, someone who is entitled to ask for spousal support must begin a court proceeding for spousal support within two years of divorce, if the couple were married, or within two years of separation, if the couple wasn't married, or they will be out of time. There's no limit to when claims can be brought under the ''Divorce Act''. | Under the ''Family Law Act'', however, someone who is entitled to ask for spousal support must begin a court proceeding for spousal support within two years of divorce, if the couple were married, or within two years of separation, if the couple wasn't married, or they <span class="noglossary">will</span> be out of time. There's no limit to when claims can be brought under the ''Divorce Act''. | ||
====Children==== | ====Children==== | ||
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The two laws are the most different in terms of how they talk about children. The ''Divorce Act'' talks about spouses who have custody and access. The ''Family Law Act'' talks about guardians who have parental responsibilities and parenting time, and people who aren't guardians who have contact. I prefer how the ''Family Law Act'' deals with children. It's more focused on the rights and interests of children and less focused on the rights of parents. | The two laws are the most different in terms of how they talk about children. The ''Divorce Act'' talks about spouses who have custody and access. The ''Family Law Act'' talks about guardians who have parental responsibilities and parenting time, and people who aren't guardians who have contact. I prefer how the ''Family Law Act'' deals with children. It's more focused on the rights and interests of children and less focused on the rights of parents. | ||
Because the two systems are so different, even though a married spouse can make a claim under both laws, it's best just to pick one. It will be less confusing for the court and less confusing for the parties involved. | Because the two systems are so different, even though a married spouse can make a claim under both laws, it's best just to pick one. It <span class="noglossary">will</span> be less confusing for the court and less confusing for the parties involved. | ||
==The Law About Divorce== | ==The Law About Divorce== | ||
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====Adultery==== | ====Adultery==== | ||
To get a divorce based on adultery, the spouse asking for the divorce has to be able to prove that his or her spouse had sex with someone else, without his or her permission. The evidence the court will require isn't circumstantial evidence, like a hotel receipt, but direct evidence, like a photograph or the spouse's admission. | To get a divorce based on adultery, the spouse asking for the divorce has to be able to prove that his or her spouse had sex with someone else, without his or her permission. The evidence the court <span class="noglossary">will</span> require isn't circumstantial evidence, like a hotel receipt, but direct evidence, like a photograph or the spouse's admission. | ||
A spouse can't ask for a divorce because of his or her own adultery. | A spouse can't ask for a divorce because of his or her own adultery. | ||
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====Cruelty==== | ====Cruelty==== | ||
To get a divorce based on cruelty, the spouse asking for the divorce has to be able to prove that he or she was treated with such mental or physical cruelty that it was impossible to continue living together. The evidence of cruelty that the court will require must some from someone else, like a doctor or a psychologist. The spouse's own evidence won't do. | To get a divorce based on cruelty, the spouse asking for the divorce has to be able to prove that he or she was treated with such mental or physical cruelty that it was impossible to continue living together. The evidence of cruelty that the court <span class="noglossary">will</span> require must some from someone else, like a doctor or a psychologist. The spouse's own evidence won't do. | ||
A spouse can't ask for a divorce because of his or her own cruelty. | A spouse can't ask for a divorce because of his or her own cruelty. | ||
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====The Effect of Forgiveness==== | ====The Effect of Forgiveness==== | ||
The court will not grant a divorce based on adultery or cruelty if the adultery or cruelty has been forgiven. If the bad behaviour has been forgiven, the marital relationship hasn't broken down and the court can't make the divorce order. | The court <span class="noglossary">will</span> not grant a divorce based on adultery or cruelty if the adultery or cruelty has been forgiven. If the bad behaviour has been forgiven, the marital relationship hasn't broken down and the court can't make the divorce order. | ||
===When can the court make the divorce order?=== | ===When can the court make the divorce order?=== | ||
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<blockquote><tt>to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made</tt></blockquote> | <blockquote><tt>to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made</tt></blockquote> | ||
In other words, the court will usually refuse to make a divorce order unless child support is being paid in the amount that would normally be required by the Child Support Guidelines. | In other words, the court <span class="noglossary">will</span> usually refuse to make a divorce order unless child support is being paid in the amount that would normally be required by the Child Support Guidelines. | ||
===When is a divorce order effective?=== | ===When is a divorce order effective?=== | ||
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====No Divorce without a Divorce Order==== | ====No Divorce without a Divorce Order==== | ||
No matter how long spouses wait, they will always be married to each other until one of them dies or they get divorced. There's no automatic divorce. | No matter how long spouses wait, they <span class="noglossary">will</span> always be married to each other until one of them dies or they get divorced. There's no automatic divorce. | ||
====New Relationships==== | ====New Relationships==== | ||
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===Who can ask for child support?=== | ===Who can ask for child support?=== | ||
Under s. 15.1(1) only spouses can ask for child support orders. If someone other than a spouse has custody of a child and child support, the person will need to apply for child support under the provincial ''Family Law Act''. | Under s. 15.1(1) only spouses can ask for child support orders. If someone other than a spouse has custody of a child and child support, the person <span class="noglossary">will</span> need to apply for child support under the provincial ''Family Law Act''. | ||
===How is the amount of child support calculated?=== | ===How is the amount of child support calculated?=== | ||
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To change a British Columbia ''Divorce Act'' child support order when the Respondent lives in another province, the Applicant first applies here, in British Columbia, for a ''provisional order'' under s. 18. | To change a British Columbia ''Divorce Act'' child support order when the Respondent lives in another province, the Applicant first applies here, in British Columbia, for a ''provisional order'' under s. 18. | ||
If the court makes a provisional order, it will send the order to the province where the Respondent lives, and the court there will have a hearing to ''confirm'' the provisional order under s. 19. The court at the confirmation hearing may: | If the court makes a provisional order, it <span class="noglossary">will</span> send the order to the province where the Respondent lives, and the court there <span class="noglossary">will</span> have a hearing to ''confirm'' the provisional order under s. 19. The court at the confirmation hearing may: | ||
#confirm the provisional order; | #confirm the provisional order; | ||
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To change a British Columbia ''Divorce Act'' spousal support order when the Respondent lives in another province, the Applicant first applies here, in British Columbia, for a ''provisional order'' under s. 18. | To change a British Columbia ''Divorce Act'' spousal support order when the Respondent lives in another province, the Applicant first applies here, in British Columbia, for a ''provisional order'' under s. 18. | ||
If the court makes a provisional order, it will send the order to the province where the Respondent lives, and the court there will have a hearing to ''confirm'' the provisional order under s. 19. The court at the confirmation hearing may: | If the court makes a provisional order, it <span class="noglossary">will</span> send the order to the province where the Respondent lives, and the court there <span class="noglossary">will</span> have a hearing to ''confirm'' the provisional order under s. 19. The court at the confirmation hearing may: | ||
#confirm the provisional order; | #confirm the provisional order; | ||
