Difference between revisions of "Requirements for Divorce and Annulment"

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==What is a divorce?==
==What is a divorce?==
A divorce is a court order that ends a marriage and is made under the ''Divorce Act''. Only married spouses can get a divorce to end their relationship; unmarried spouses cannot and do not need to divorce. Their relationships are over when they separate.
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 the eyes of the law, you and your spouse will remain married until a court makes a divorce order.
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 if you plan to or wish to marry again in the future.  
A divorce order is necessary to remarry.


==What are the grounds for getting a divorce?==
==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”. There are three basis on which marriage breakdown can be shown to have occurred:  
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,
*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, or
*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.
*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 separation of at least one year. 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 if the other spouse does not agree.
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?==
==What does it mean to be separated for a year?==
Separation usually means living in separate places. However, some couples can be separated even though they continue to 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, go to family events together as a couple and so on.
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?==
==When does the one-year period of separation start?==
Separation starts 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.
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?==
==What 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. But within the one-year separation period, they can only live together in a marriage-like relationship for a total of 90 days or less in order to avoid having to restart the clock on the date of separation. If they live together for more than 90 days, the counting of 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 [[Separation and Separation Agreements (Script 115)|115]] on “Separation and Separation Agreements”.
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.


==When can you get the divorce proceedings started?==
==When can you start divorce proceedings?==
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 immediately before the start of the court case.  
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 do I go to?==
==Which court should you go to?==
Although there are two courts that deal with family law problems in British Columbia: the Provincial Court of British Columbia and the Supreme Court of British Columbia, only the Supreme Court can make divorce orders under the ''Divorce Act'' and orders relating to property and debt division under the ''Family Law Act'' If you want a divorce, you will need to start a court action in the Supreme Court. The Provincial Court can only make orders under the ''Family Law Act'', including orders about parenting arrangements, child support and spousal support. These orders can also be made by the Supreme Court.  
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?==
==What is a desk order divorce?==
A “desk order divorce” is a court process that allows you to get a divorce order without going to court. Once a court case has started, and provided 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 a bunch of court forms, including:  
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,
*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,
*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, and
*a draft of the divorce order
*your affidavit giving the court the information it needs to decide if the divorce order is justified  
*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.  
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.


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


==What about adultery?==
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 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. It does not require the third party in which the adulterous behaviour occurred to be a party to the court case, but you may want that third party to be a witness to give evidence of the adulterous behaviour.


==What about cruelty?==
==Adultery==
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 cruelty.
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?==
==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 and a spouse’s ability to become self-supporting after separation.
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 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.
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.


==Are there reasons why a judge won’t grant a divorce?==
==Why would a judge not grant a divorce?==
Yes, they are:
If spouses engaged in the following behaviours, a judge would not grant a divorce:
*collusion
*collusion
*connivance
*connivance
*condonation
*condonation
*insufficient arrangements for child support
*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.
==What do collusion, connivance and condonation mean?==
*'''Connivance''' is when one spouse encourages the other to commit adultery or tricks the other spouse into committing adultery to speed up the divorce.
Collusion is when you plan with your spouse to lie to the court, either in an affidavit or through your testimony, to get a divorce order. For example, a couple agrees that they will lie about the date of separation to speed up the divorce process.
*'''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.
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 approved of your spouse’s adultery or cruelty. If you have approved of your spouse’s adultery or cruelty, you cannot use your spouse’s adultery or cruelty to claim a divorce.
 
==What about 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. Refer to script [[Child Support (Script 117)|117]] on “Child Support” for more information on this.


==What is annulment?==
==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 an annulment, then it is unnecessary to get a divorce.
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 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 spouses 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''.  
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 if you are thinking about trying 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 void a marriage. In the eyes of the law, you and your spouse will remain married until a judge makes a declaration of annulment.  
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 obtain a divorce?==
==How long does it take to get a divorce?==
This varies from case to case and will depend on how long it takes for the issues of parenting arrangements, child support, spousal support and division of family property and debt, all of which are called “corollary relief,” to be resolved. Except in special circumstances, all of the corollary relief must be resolved before a court will make a divorce order. 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 by that point and how busy the court registry where the court case has been filed is. The time it takes to get a divorce order may be shortened if a court application for divorce is done through a court hearing. For more information on this option, you should speak with a lawyer.  
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==
==Summary==
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==More information==
==More information==
*For a step-by-step description of the desk order divorce process, see script [[Desk Order Divorces: The Do-It-Yourself Divorce Process (Script 121)|121]].
*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.
*For a description of the process and copies of the necessary court forms, see the [http://wiki.clicklaw.bc.ca/index.php?title=Divorce Divorce page] of the wikibook ''JP Boyd on Family Law'', provided by Courthouse Libraries BC. And read more information about invalid and void marriages on [http://www.wiki.clicklaw.bc.ca/index.php/Marriage_&_Married_Spouses Marriage & Married Spouses page].
*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.
 




[updated April 2017]
[updated October 2018]


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


----
----

Revision as of 20:49, 29 October 2018

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.


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.