What is the difference between separation and divorce?
A separation occurs when one or both spouses decide to live apart with the intention of not living together again. Once you are separated, you may need to discuss custody, access and child support with your spouse. You may also need to work out issues dealing with spousal support and property. You can resolve these issues in different ways:
• You can negotiate a separation agreement. A separation agreement is a legal document signed by both spouses which details the arrangements on which you have agreed. In some jurisdictions, independent legal advice is required to make the document legally binding.
• You can make an application to the court to set up custody, access, support and property arrangements under the provincial or territorial laws that apply to you.
• You can come to an informal agreement with your spouse. However, if one party decides not to honour the agreement, you will have no legal protection.
To legally end your marriage, you need a divorce, which is an order signed by a judge under the federal law called the Divorce Act.
What if we were never legally married?
If you are not legally married, divorce does not apply to you. However, you can still negotiate a separation agreement or make an application to the court under the laws in your province or territory to set up custody, access, child support and other arrangements. Common-law spouses have fewer rights upon separation than married couples.
Is the marriage over once I begin divorce proceedings?
The marriage is not over until a judge grants you a divorce order at the end of the process.
Before you begin divorce proceedings, you may wish to consider whether marriage counselling could help you and your spouse. Once you have started formal divorce proceedings, you may stop the process at any time if you and your spouse wish to think about reconciling.
Who can apply for a divorce in Canada?
You can apply for a divorce in Canada if:
• you were legally married in Canada or in any other country; and
• you intend to separate permanently from your spouse and believe there is no chance you will get back together, or you have already left your spouse and do not intend to get back together; and
• either or both of you have lived in the Canadian province or territory for at least one year immediately before applying for a divorce in that province or territory.
Do I need a reason to get a divorce?
To get a divorce, you will have to show that your marriage has broken down. The law says marriage breakdown has occurred if:
• you and your spouse have lived separate and apart for one year with the idea that your marriage is over; or
• your spouse has committed adultery and you have not forgiven your spouse; or
• your spouse has been physically or mentally cruel to you, making it unbearable to continue living together. Cruelty may include acts of physical violence and those causing severe mental anguish.
You can get a divorce if one of these situations applies to you.
Do I have to prove that my spouse is responsible for our marriage breakdown?
Under the Divorce Act, you do not need to prove that your spouse was at fault in order to get a divorce. If the reason you are asking for a divorce is marriage breakdown, shown by one year of living apart, either of you can request a divorce. It does not matter which one of you decided to leave. In fact, the law gives you the choice of applying to the court together to ask for a divorce.
However, if the reason you are asking for a divorce is marriage breakdown because of adultery or mental or physical cruelty, you will have to have proof of what happened.
How do I start a divorce application?
It is always advisable when starting a divorce application to speak to a lawyer knowledgeable about family law. A lawyer can tell you exactly how the law applies to your situation and how to protect your rights. You can then decide what to do.
• To start a divorce application, you fill out the appropriate forms for your province or territory. If you have a lawyer, he or she will fill out the forms for you and will be responsible for processing the divorce. You may obtain forms at government bookstores, some private bookstores and, in some cases, from the Internet. In some jurisdictions, court offices and information centers provide forms.
• There are a few things in particular that you have to include in the forms. If there is a child of the marriage, you need to write down the parenting arrangements, including financial support. If these arrangements are in dispute, you will need to describe the arrangements that you are seeking.
• Once you have completed all the forms, you file them at the courthouse, pay the required court fees, and follow the court rules and procedures for your province or territory.
What if I apply for a divorce and then try to live with my spouse again?
Before or after you have applied for a divorce on the ground of one-year separation, you can live together for up to 90 days for the purposes of reconciliation. If things don’t work out, you can continue your action for a divorce as if you had not spent this time together.
What happens if my spouse and I agree on all the issues raised by the divorce?
If you and your spouse agree on all issues, you have an uncontested divorce.