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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