In BC, there are two distinct statutes that govern the divorce process. The first is known as the Federal Divorce Act, and the second is BC’s Family Law Act. The latter statute was implemented in 2013 and is mainly focused on the safety of children who are part of a family going through the divorce process. In this Act, the responsibilities of parents are established concerning support payments and the division of assets. The Family Law Act also deals with instances of family violence and is designed to help families settle disputes surrounding the divorce out of court.
When it comes to establishing legal grounds for divorce, the Divorce Act provides three basic ways in which a party can prove marital breakdown. We will discuss each of these three ways below:
Separated for One Year
This is the most commonly used ground for divorce in Canada because it is by far the easiest to prove. Once a couple have separated, they can begin the divorce proceedings. If they remain separated for 12 months, a Divorce Order will be granted, regardless of the reason for separation. There are a few technicalities that should be covered here as well. The first has to do with attempted reconciliation. Couples can attempt to re-establish their marriage even after divorce proceedings have begun by residing together for 90 days or less without having to start the 12-month separation period again. If a couple remains together for more than 90 days, but decide to still pursue a divorce, the 12-month period will reset. Couples can also live in the same residence while waiting 12 months for their Divorce Order, but they must be able to prove that they are living “separate and apart”, which may be difficult.
Obtaining a divorce on the grounds of adultery is a bit more difficult because you are required to prove the adultery actually took place. You do not have to identify the person with whom your spouse committed adultery. Nor do you have to actually ‘catch them in the act’, but there should be a high probability that adultery occurred based on a few factors. The easiest way to prove adultery is to have your former spouse admit it in an affidavit. Beyond this, you can prove adultery by examination for discovery, or by a court appearance. These methods are much more difficult than gaining an admission from your spouse. You will require considerable consultation from your attorney before pursuing divorce on those grounds.
In a Petition for Divorce that cites adultery as the cause for termination of a marriage, both parties must swear there has been no collusion. Adultery must have truly occurred, and it must have occurred without the consent of the second spouse. Extramarital sex in open marriages is not a legal ground for divorce.
Intolerable Mental or Physical Cruelty
This method usually involves the most difficulty when pursuing a divorce. Through precedent, Canadian courts have established that a divorce may be granted on these grounds if the level of cruelty renders continued cohabitation intolerable. You must be able to provide examples of this cruelty, which can be difficult to prove. Cruelty can be subjectively interpreted and must not be due to any trivial incompatibilities. If you can prove that the cruelty you have experienced is unnecessarily caused, either physically or mentally, you will likely be granted a divorce. If circumstances lead the court to believe that cruelty in the relationship is borne out of something like mutual ill temperament, you may be unsuccessful. Before pursuing divorce on these grounds, it is vital that you obtain clear advice from your attorney.
Divorce can mark a difficult and painful period in your life, which is why you will want to be able to rely on strong support from your legal representative. At Ganapathi Law Group, we are committed to providing sound legal advice and representation along with sincere compassion and support when you need it most. Be sure to contact us today for a free consultation.