Filing For Divorce: How And When A Court Will Grant A Divorce

Filing For Divorce: How And When A Court Will Grant A Divorce

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Most people just assume that seeking a divorce falls within their civil rights, and the court is just there to pass judgment on marital property and child custody and like. But that isn’t the case. In fact, there are several enumerated grounds and requirements that must be satisfied to the court’s content before it will grant a divorce. Additionally, there are several bars to getting a divorce that, if present, may actually prevent a court from granting the divorce.

Getting A Divorce: The Requirements –

The breakdown of a marriage is the one and only ground for divorce in Canada. To prove to the court that the marriage has, in fact, broke down, the parties will be required to show evidence of living separate and apart for a period of at least one year, or the existence of adultery, or the existence of cruelty.

Option 1: Living Separate And Apart –

This rule isn’t all that complicated. Basically, you’ve got to prove to the court that you and your spouse have lived separate and apart for a period of one year, which must immediately precede the divorce judgment, and are still living apart at the time of the divorce proceedings. In fact, the legal definition of separate and apart is so generally interpreted by the courts that couples still technically living together may qualify. The law states that spouses are said to be living separate and apart, even if they’re living under the same roof, but where there’s a complete withdrawal from the performance of their matrimonial duties. This can be shown by:

·         Eating meals in separate rooms, or at separate times.

·         Absence of any sexual relations or activities.

·         Sleeping in separate bedrooms.

·         Not engaging in social activities with one another.

·         Absence of performance of domestic services for one another, unless a contract for services exists.

·         Little to no communication between the spouses.

While the law does not require you to prove each of the above six elements, showing the existence of as many as possible will benefit your case for divorce greatly.

Option 2: Adultery –

If the marriage in question was affected by adultery, this will allow you to proceed prior to the one year barrier requirement. For example, if you’re able to prove the existence of adultery, and its existence is not disputed by the adulterer-spouse, then the court is actually required to grant the divorce. An important side note here is that only the spouse who didn’t commit adultery is eligible to apply for divorce using this option.

Option 3: Cruelty –

Like adultery, cruelty allows the divorce to proceed prior to the one year barrier requirement. The presence of cruelty is said to exist where one spouse treats the other spouse with mental or physical cruelty of such a level that it makes living together unbearable. The existence of cruelty can be a one-off incident, meaning, that it only needs to occur once, but must of the type of cruelty described above. Again, an important side note here is that only the spouse who did not commit the cruelty can apply for divorce using this option.

Bars To Divorce –

Under Canadian law, there are three separate bars to divorce that may prevent a reviewing court from granting your request for divorce: they are, collusion, connivance, and condonation.

Bar 1: Collusion –

This bar to divorce is as it sounds: if you and your spouse collude to fabricate evidence in an attempt to convince a reviewing court to grant your divorce, it will be denied. One situation that occurs particularly often under this bar is when you and your spouse mislead the court into believing that you have lived separate and apart for more than a year, when in fact, it has been less than a year, or you’re still living together. While this may seem like a harmless way to expedite your divorce proceedings, it has far reaching and long lasting consequences. Under the law, collusion is an absolute bar to divorce. What this means is that spouses who are found guilty of collusion will not be allowed to divorce.

Bar 2: Connivance –

Few people know what the word ‘connivance’ means, let alone its legal definition. Simply put, connivance is when you encourage the other spouse to engage in actions and activities that would likely result in a marriage breakdown.  A simple example of that would be if one spouse convinced the other to commit adultery. Unlike collusion, connivance is a discretionary bar to divorce, which means that the court still retains the option of granting the parties a divorce, even if there’s evidence of connivance.

 Bar 3: Condonation –

Again, this bar is seldom understood by most people. Essentially, condonation occurs when one spouse forgives the other spouse for committing adultery or cruelty, and they begin or resume cohabitating together. Like connivance, condonation is a discretionary bar to divorce, and thus, the court still retains the jurisdiction to grant the parties a divorce, despite evidence of condonation.