Divorce and the Law on Getting Divorced: Difference between revisions

The criteria that must be met to obtain an annulment ― which is different than a divorce order and isn't nearly as simple and straightforward as most people think ― are discussed in the chapter within the section [[Married Spouses]].

As you can imagine, few people are prepared to admit that they committed adultery or battered their spouse, and as a result divorces based on these grounds rarely proceed smoothly. In fact, where a court action has dragged on long enough that more than a year has passed since the parties separated before the matter finally comes to court, some judges will refuse to hear any evidence of the wrongful behaviour and will grant the divorce instead on the basis of the parties' separation.

The ''Divorce Act'' provides that a couple can attempt to reconcile and resume married life for up to 90 days during this one year period. If the couple live together for a total period of more than 90 days with the intention of getting back together, the clock resets and a new one year period will not start running until after the couple separates again.

A spouse claiming that the other spouse is guilty of adultery must prove this claim in court. Before the court will pronounce the order for divorce, the court must also be satisfied that the party making the claim has not ''condoned'' the adultery or ''connived'' to effect the adultery. If the court is not satisfied, it will not grant the divorce.

Many people will have seen the movie "Intolerable Cruelty", which lays a great deal of emphasis on the punitive consequences of adultery, and suggests that spouses caught with their pants down are going to lose everything they have. That might be true in the US, but it certainly isn't true in Canada. In Canada, there are no consequences for marital offences of that nature: you won't lose your house, you won't lose the children and you won't find yourself living in a cardboard box. Adultery, while relevant as a ground of divorce, plays no role in the court's determination of these other issues.

If a court finds that there has been conspiracy, connivance or condonation in the application for the divorce order, the court will not grant the order. The point of this is to ensure that a couple are not attempting to escape the requirements of the ''Divorce Act'' and cheat the court to get a quick divorce.

The court is required, under s. 11(1)(b) of the ''Divorce Act'', to satisfy itself that "reasonable arrangements" have been made for the support of the children before it can grant an order for divorce. As you might expect, a ''reasonable arrangement'' usually means that child support is being paid pursuant to the [[Child Support Guidelines]]. If you have children, you will have to prove that the children are being provided for as the Guidelines require before you can get a divorce; remember that under the Guidelines, the table amount of child support payable for incomes of less than $10,800 per year is zero.

The only possible exception to this rule would be if the parent to whom child support is payable cannot be found, and the child support payments therefore cannot be paid. In such circumstances the court may make a divorce order that doesn't refer to child support or it may make an order which merely refers to the payor's obligation to pay child support without fixing an amount payable.

*the marriage legally exists;

*at least one of the parties has been ordinarily resident in British Columbia for at least one year before the proceeding began;

*the ground on which marriage breakdown in claimed has been proven; and,

An order for divorce can be made on its own or together with ''corollary relief''. Typical orders for corollary relief include orders about the care of children, child support and spousal support.

Once the appeal period has expired, either party may apply to the court, for a small filing fee, for a Certificate of Divorce. This is, strictly speaking, unnecessary, as the order is itself sufficient proof of divorce. Nevertheless, people often want this certificate to obtain a sense of closure, or because they expect to marry within the next couple of years or because they may wish to prove they are divorced without having to disclose the other terms of their divorce order. Most family law lawyers take care to prepare Certificates of Divorce nicely in a format suitable for framing.