Difference between revisions of "Requirements for Divorce and Annulment"

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{{Dial-A-Law Blurb}}
{{REVIEWEDPLS | reviewer = [http://bhmlawyers.ca/team-2/samantha-de-wit/ Samantha de Wit], Brown Henderson Melbye and [http://jimalelawcorp.com/about-zahra/ Zahra H. Jimale], Jimale Law Corporation|date= October 2018}} {{Dial-A-Law TOC|expanded = 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.


{{Dial-A-Law TOC|expanded = family}}
==Understand your legal rights==
This script only applies to married spouses. Unmarried spouses and other unmarried couples do not need to get a divorce and, because they are not married, cannot get an annulment.


==What is a divorce?==
===Married spouses need to divorce to end their legal relationship===
A divorce is a court order, made under the ''Divorce Act'', that ends a marriage. Only married spouses need to get a divorce to end their relationship; unmarried spouses and other unmarried couples do not need to divorce. Their relationships are over when they separate.
A '''divorce''' is a court order under the ''[http://canlii.ca/t/7vbw 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 judge makes a divorce order.
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 are the grounds for getting a divorce?==
A married spouse will need to get a divorce order if they ever want to remarry.
The ''Divorce Act'' applies to all divorces in Canada, whether you were married inside Canada or elsewhere. Under the ''Divorce Act'', the one reason why a divorce order can be granted is because of “marriage breakdown”. There are three reasons why marriage breakdown may have occurred:


*the spouses are separated and have lived separate and apart for at least one year
===The grounds for getting a divorce===
*one spouse has committed adultery which the other spouse hasn’t forgiven
*one spouse has been mentally or physically abusive to the other spouse, called “cruelty” in the ''Divorce Act'', and that spouse can no longer continue in the marriage


Most people ask for a divorce based on separation. 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.
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


==What does it mean to be separated for a year?==
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.
Separation usually means living in separate places. Some couples can be separated even though they continue to live under the same roof, as long as the marriage-like quality of their relationship has ended and they have stopped sleeping together, doing chores for each other, going to family events together and so on.


==When does the one-year period of separation start?==
===Living separate and apart===
The start of separation is usually 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 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.


==What if you reconcile for a short time?==
====When separation starts====
Spouses 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 for a total of 90 days or less. 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. For more information on separation, refer to script [[Separation and Separation Agreements (Script 115)|115]] on “Separation and Separation Agreements”.
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.


==When can you get the divorce proceedings started?==
====If you reconcile for a short time====
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.
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)|separation and separation agreements (no. 115)]].


==Which court do I go to?==
===Starting divorce proceedings===
Although there are two courts that deal with family law problems, the Family Court and the Supreme Court, only the Supreme Court can make divorce orders and other orders under the ''Divorce Act''. If you want a divorce, you will need to start a divorce proceeding in the Supreme Court.


==What is a desk order divorce?==
====When you can start divorce proceedings====
A “desk order divorce” is a court process that allows you to get a divorce without appearing in court at a trial. Once a court case has started, and providing you and your spouse agree on the other orders you want the court to make, you can apply for the divorce order by filing a bunch of court forms, including:
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.) 


*a Requisition asking for the order,
====Which court you sue in====
*an Affidavit of Service proving that your spouse was served with the documents beginning the court case,
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 draft order, and
*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. 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.


==What about adultery?==
===A desk-order divorce allows you to avoid going to court===
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.
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'''


==What about cruelty?==
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.  
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 mental cruelty.


==Is there an advantage to proving adultery or cruelty?==
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.  
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.


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.
We explain the desk-order process in more detail in our information on [[Desk Order Divorce: The Do-It-Yourself Divorce Process (No. 121)|desk-order divorce (no. 121)]].


==Are there reasons why a judge won’t grant a divorce?==
===Situations where the court will not grant a divorce===
Yes, they are:
The court will not grant a divorce in certain situations.


*collusion
====Collusion or connivance====
*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.
*condonation
*insufficient arrangements for child support


==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 work with your spouse to lie to the court, either in an affidavit or through your testimony, to get a divorce. For example, if a couple agrees that they will lie about the date of separation to speed up the divorce process.


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====
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.


Condonation is when you have forgiven your spouse for his or her adultery or cruelty. If you have forgiven your spouse, you cannot use your spouse’s adultery or cruelty to claim a divorce.
====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)|child support (no. 117)]] has more on this.


==What about insufficient child support?==
===Annulment is a court order declaring a marriage invalid===
Before granting a divorce, the 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 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.
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.


==What is annulment?==
Circumstances that can make for an invalid marriage include:
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 that, it is unnecessary to get a divorce.
*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


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 parties 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''.
====Effect of annulment====
If the court annuls a marriage, it is as if the marriage never happened.  


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.
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''.


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.
====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.


==Summary==
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.
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==
==Common questions==


*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]].
===How is adultery proven in a divorce proceeding?===
*For a description of the process and copies of the necessary court forms, see the [[Divorce]] page of the wikibook ''JP Boyd on Family Law'', provided by Courthouse Libraries BC. More information about invalid and void marriages is available at [[Marriage & Married Spouses]].
'''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.


[updated October 2014]
===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 above was last reviewed for accuracy by JP Boyd.'''
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: [https://wiki.clicklaw.bc.ca/index.php?title=Divorce wiki.clicklaw.bc.ca]
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Revision as of 18:03, 25 March 2019

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Samantha de Wit, Brown Henderson Melbye and Zahra H. Jimale, Jimale Law Corporation in October 2018.

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
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