To legally end a marriage you need to get a divorce. In Canada, divorce is governed by theDivorce Act (Canada) (the “Act”). According to the Act, there are three main grounds for a divorce. These include cruelty, adultery, and separation for a year. However, most divorces in Canada are filed on the grounds of separation for a year. Getting a divorce can be a difficult and stressful process as you will have to deal with emotional issues and make tough decisions. Therefore, it is important to understand your rights and know the available options.
This article outlines the law and general procedure for getting a divorce in Canada.
Divorce is a legal dissolution of the marriage contract by court. To get a divorce, you will have to show that your marriage has broken down. Although separation for a year is a ground for divorce, you still have to go through the legal process to get a divorce.
Difference between Divorce and Separation
It is important not to confuse separation with a legal divorce. Sometimes people assume that if they are separated for a long period of time, then their marriage is nullified. This is not true. A divorce granted by court is the only way to legally end your marriage.
The period of one year separation starts at the time when one or both spouses plan to live separately with the intention of ending their marriage. However, separation does not always mean living in separate houses, as sometimes spouses live in the same house but occupy separate bedrooms.
Once you are separated, you can negotiate a separation agreement. A separation agreement is a legal document signed by both spouses and details the arrangements agreed on. These arrangements can include child support arrangements, division of property, and others.
Who Can Apply For a Divorce
You can apply for a divorce if you are legally married in any country and if you intend to separate from your spouse permanently.
If you were never legally married, divorce is not an option for you. However, common law couples can still set up a separation agreement which will outline the arrangements agreed on in regards to child custody, division of property, support, etc.
How to File for a Divorce
It is recommended to get advice from family law counsel before you file for a divorce because the counsel can advise you on the best course of action in your particular situation. In Canada, each province has a separate application process. Divorce forms can be provided to you by your lawyer, or can be obtained online. However, the process depends on how you choose to settle your marriage, either amicably or through court. Importantly, once you have started the formal divorce proceedings you can stop the process at any time if you and your spouse decide to reconcile.
If you decide to go to trial, you will need to prepare an application form and a financial statement outlining your income, expenses, assets and debts. If you had a child, you will have to outline the custody and financial arrangements in your divorce application as well. Once you have filed your divorce papers with the court, you must ensure that your spouse receives them as well.
Under the Divorce Act, you are not required to show that your spouse was at fault to get a divorce. However, you are required to show that you were separated for one year.
Uncontested and Contested Divorce in Canada
If you and your spouse agree on all the arrangements then you have an uncontested divorce and you do not need to go to trial. If you and your spouse do not agree on the terms of the divorce then you have a contested divorce. In such event, both spouses are required to submit court documents outlining the contested terms and issues.
The provincial or territorial court will set out the steps you must take to resolve the issues before a trial takes place. During the trial, the judge will make a final decision regarding the contested issues. Once the judgment is set out, you can apply for a Certificate of Divorce, which serves as legal proof of marriage dissolution.
You do not need to be a Canadian citizen to apply for a divorce in Canada. Divorce is based on residency, therefore, even if you got married in another country, you can still file for a divorce in Canada.
Although the majority of divorces are settled before trial, the process may take many months and be as stressful as trial preparation.
It is recommended to obtain professional advice of family law counsel regarding such issues as child custody, spouse support, financial support, sharing of property and others.
After a Divorce
Both spouses must obey court orders regarding the divorce arrangements. If one spouse does not obey a court order, the other spouse may take action.
If one spouse is not satisfied with a court order regarding certain parts of a divorce agreement, he or she can start a new case and ask a judge to make a new order.
Since getting a divorce may be a very stressful process for both spouses and children, it is usually recommended to seek help from a professional counseling agency.
Seeking the Advice of a Professional
If you have decided it is time to seek the advice of a professional ensure to email us your contact information and one of our lawyers will contact you promptly.
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