When a relationship is heading in the wrong direction,
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Legal Issues

General information.
Why do you need a divorce Order?
How do you get a divorce Order? (What are the grounds for getting one?)
Contested and uncontested divorces.
Opposing an application for a divorce Order.
The bottom-line about divorce.

General information
If you are married, and you are thinking of ending your relationship, you will need to get a divorce. The word "divorce" has a specific legal meaning. It is the legal termination of a marriage by an Order of the court.

The word "marriage" also has a specific legal meaning. It is the legal relationship between two people, (either a man and a woman, or a same-sex couple where permitted by law), which has been solemnized by a religious functionary or marriage commissioner, which gives rise to certain mutual rights, benefits and obligations. It is the Provinces, which regulate marriages in Canada.

Even if you have been living together for 30 years, if you have never been legally married (I.e. you lived "common law") you do not need a divorce Order from the court to legally terminate the relationship. Conversely, if you are legally married, but it has only been for six months, you need a divorce Order from the court to terminate the marriage.
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Why do you need a divorce Order?
Without a divorce Order, you are not divorced. You may have been separated from your spouse for twenty years, but unless a court has actually made an Order for your divorce, you are still married.

This can be important for several reasons:

  • At some point you may want to re-marry, and you can't do this until you are legally divorced (by order) from your first spouse.
  • Also, some marriage rights and obligations continue as long as you are married, even though you are separated from your spouse. For instance, your spouse may still have entitlement to some of your estate if you pre-decease him/her, even though you have been separated from him/her for years, and your estate plan says otherwise.

The bottom-line is, you should consider the implications of remaining married once you have separated from your spouse. If there is no possible chance of reconciliation, you may want to consider getting a divorce Order.
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How do you get a divorce Order? (What are the grounds for getting one)
To get a divorce, one spouse must sue the other in the appropriate court (i.e. Supreme Court/Court of Queens Bench) of the appropriate province, and at least one of the spouses must have been "ordinarily resident " in of that province for the preceding year.

In order to qualify for a divorce Order, the application must be based on one of three grounds:

  • Separation for a period of not less than one year.
  • Adultery, or,
  • Mental or physical cruelty.

While a one-year period of separation is usually established on the word of the person applying for a divorce, the court will usually require a stricter standard of proof where the grounds for divorce are adultery or cruelty.
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Contested and Uncontested Divorces
A divorce may be contested or uncontested. An uncontested divorce means a divorce where the grounds for obtaining the order are admitted, and there are no other issues in dispute between the parties, such as spousal or child support, custody and access, or property division.

A contested divorce means a divorce where the parties have a dispute over the grounds for divorce, or they have some other issue, which needs to be resolved by the court.
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Opposing an application for a divorce Order
It is possible to oppose an application for a divorce Order, although this rarely happens. In general, once one of the grounds for divorce has been established, the courts will allow the divorce application, despite the objections of the other spouse.

Where there are dependent children, the court will not grant a divorce unless it is satisfied that reasonable arrangements for the support of the children have been made. This requirement usually means that the parties will have to establish that child support is being paid in accordance with the Child Support Guidelines.
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The bottom-line about divorce.
Getting a divorce has gotten easier over the years. There is no requirement to prove that a party is at fault, with one of the grounds being that the parties have been separated from each other for not less than one year. But divorce Orders don't just happen by themselves. You need to take the proper steps to get an Order, and a family law lawyer can walk you through those steps.
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