Requirements for Divorce and Annulment
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Samantha de Wit in April 2020.|
A divorce is the legal process that ends a valid marriage. It’s different from an annulment, which is a court order declaring a marriage invalid. An order for a divorce or an annulment is granted only if certain requirements are met. Learn about the requirements to get a divorce or annulment.
This information has been updated to reflect changes to the Divorce Act that took effect on March 1, 2021.
What you should know
Divorce ends a valid marriage
Canada’s divorce law is called the Divorce Act. Under it, a court order for divorce ends a valid marriage. Only married spouses can get a divorce. Unmarried spouses can’t, and don’t need to.
Some religions allow for religious or ritual divorces. These divorces don’t legally end a marriage. Under Canadian law, you and your spouse are married until a court makes a divorce order.
To remarry, a married spouse first needs to get a divorce.
The grounds for getting a divorce
The Divorce Act applies to all divorces in Canada, whether you were married in Canada or not. 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 that the other spouse did not approve of or forgive
- one spouse has been mentally or physically abusive (or both) to the other spouse — called cruelty in the Divorce Act — which has made living together intolerable
Basing divorce on living separate and apart
Separation usually means living apart. But some couples can be living in the same home and still be separated, as long as the “marriage-like” quality and intimacy of their relationship has ended. For example, even though they live in the same home, they no longer:
- sleep together
- do chores for each other
- eat meals together
- share finances
- go to family events as a couple
When separation starts
Separation starts when one spouse tells the other they no longer want to be in the relationship. The decision to separate can be made by one or both spouses. It’s not necessary for both spouses to agree to the separation. Nor do they have to sign any documents or go to court to be separated.
If you reconcile for a short time
Spouses who are separated can 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 separation date. If they live together for more than 90 days, the one-year separation period starts over if they break up again later. For more details, see our information on separation and separation agreements.
Basing divorce on adultery or cruelty
Adultery is when a spouse has sex (even once) with someone who isn’t their spouse. You can’t claim a divorce based on cruelty or adultery that you committed. If you ask for a divorce based on your spouse’s adultery or cruelty, you must prove that the adultery or cruelty occurred. That can be difficult if the other spouse doesn’t agree. This is why most people ask for a divorce order based on having lived separate and apart for at least one year -- even if adultery or cruelty has occurred.
Proving adultery in a divorce proceeding
Adultery is usually proven by having the spouse who committed it say so in an affidavit. An affidavit is a legal document where a witness makes statements about facts they say are true.
If your spouse won’t admit to the adultery, then you will have to prove it some other way. Saying that you believe or suspect that your spouse committed adultery isn’t enough. A court will only grant a divorce based on adultery if it’s convinced there’s credible evidence that the adultery occurred.
You could prove your spouse committed adultery by having them, or another witness, testify in court about it. The person with whom your spouse committed adultery doesn’t have to be involved in the court case. But you can ask them to give evidence of the adultery.
Proving cruelty in a divorce proceeding
You can establish the breakdown of a marriage by showing cruelty that makes living together intolerable. Cruelty can be either physical or mental abuse or both. You have to prove your spouse’s behaviour toward you made staying with them impossible. Mental cruelty is harder to prove than physical cruelty.
To support your case, evidence can be provided in the form of police reports, medical records, text messages, emails, and photos of physical injuries or property damage caused by your spouse. You should speak to a lawyer to see if you have enough evidence to prove cruelty.
Starting divorce proceedings
When you can start divorce proceedings
To start divorce proceedings in BC, you need to have lived in the province for at least one year immediately beforehand. This is the residency requirement. If you meet it, you can start a court action any time after you separate. But you can’t apply for a divorce order until after you’ve been separated for at least one year (if you’re applying for a divorce on the legal basis of being separated for a year).
If you’re applying for a divorce on the basis of adultery or cruelty, you don’t have to wait. You can start your court action and make an application for divorce right away.
Which court you sue in
Two courts deal with family law in BC: Provincial Court and Supreme Court. But only Supreme Court can make divorce orders under the Divorce Act. So that’s where you must start a court action if you want a divorce.
Desk order divorce
A desk order divorce is a process that lets you get a divorce order without having to appear in front of a judge. It’s also called an undefended or uncontested divorce. You can apply for a desk order divorce once you and your spouse have resolved any other family law issues.
Either one spouse, or both together, can apply for a desk order divorce in BC Supreme Court. The process involves preparing and filing several court forms.
When the court will not grant a divorce
The court won’t grant a divorce if neither you nor your spouse has lived in BC for at least a year. Here are some other situations in which the court won’t grant a divorce.
Collusion or connivance
If you try to trick the court, the court won’t grant a divorce. Collusion is when spouses plan to lie to the court to get a divorce order. This can happen either in an affidavit or by way of oral statements made in court. An example is when a couple agrees 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.
Forgiving your spouse’s conduct may prevent a divorce from being granted on the grounds of adultery or cruelty. 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 reasonable arrangements have been made for the financial support of the children. This usually means that adequate child support is being paid. (That is, the support payments meet the level required by the Federal Child Support Guidelines, either under a court order or a separation agreement.) See our information on child support.
Annulment is a court order declaring a marriage invalid
An annulment means that, by law, you and your partner aren’t actually legally married. If the court declares a marriage annulled, you don’t have to apply for a divorce. While an annulment ends an invalid marriage, divorce ends a valid marriage.
A marriage is invalid when, for example:
- one spouse was already married when they married the other person
- one of the spouses was under age 16 at the time of the marriage ceremony
- a spouse married someone other than the person they intended to marry
Effect of annulment
If the court annuls a marriage, it’s 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 BC provincial Family Law Act.
The law around foreign marriage annulment is complicated. If you want to annul a foreign marriage, you should speak to a lawyer who deals with annulments in the country where the marriage occurred.
Some religions allow for religious annulments. These annulments do not legally cancel a marriage or divorce people. The couple stays married until a court declares an annulment.
How long does it take to get a divorce?
The time to get a divorce varies. There may be many family law issues such as 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 your family law issues are resolved, a divorce can take three to five months to finalize, depending on:
- what steps have already been taken,
- how busy the court registry is, and
- if the spouses live in the same jurisdiction.
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’re getting remarried — you should speak with a lawyer.
Does it make a difference if my divorce is based on adultery or cruelty?
If you can show marriage breakdown based on adultery or cruelty, the court can make a divorce order sooner. That is, the court doesn’t have to wait until you’ve lived separate and apart for one year. But adultery can be hard to prove (and take longer and cost more) if the other spouse doesn’t agree. This is why most people ask for a divorce order based on having lived apart for at least one year.
The court doesn’t consider adultery or cruelty when it divides property or makes a support order. It will consider adultery or cruelty when making decisions about children if the behaviour limits:
- 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 caused by your spouse’s cruelty. This may be 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’re thinking about claiming damages caused by your spouse’s cruelty.
Who can help
With more information
The Family Law in BC website from Legal Aid BC has free step-by-step guides for applying for a desk order divorce.
The BC government has a free step-by-step online tool, the Online Divorce Assistant, to help couples with or without children apply for a divorce together.
The wikibook JP Boyd on Family Law explains the requirements for divorce in detail.
Free and low-cost legal help
Options for legal help include legal aid, pro bono services, legal clinics, and advocates. See our information on free and low-cost legal help.
|Dial-A-Law © People's Law School is licensed under a Creative Commons Attribution - NonCommercial - ShareAlike 4.0 International Licence.|