Difference between revisions of "Requirements for Divorce and Annulment"

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{{Dial-A-Law Blurb}}
{{REVIEWEDPLS | reviewer = [http://bhmlawyers.ca/team-2/samantha-de-wit/ Samantha de Wit]|date= April 2020}} {{Dial-A-Law TOC|expanded = divorce}}
A '''divorce''' is the legal process that ends a valid marriage. It’s different from an '''annulment''', which is a court order declaring a marriage invalid. An order for a divorce or an annulment is granted only if certain requirements are met. Learn about the requirements to get a divorce or annulment.


{{Dial-A-Law TOC|expanded = family}}
{| class="wikitable"
This script only applies to married spouses. Unmarried spouses do not need to get a divorce and, because they are not married, cannot get an annulment.
|align="left"|'''Alert!'''
This information has been updated to reflect [https://dialalaw.peopleslawschool.ca/the-divorce-act-is-changing changes to the ''Divorce Act''] that took effect on March 1, 2021.
|}


==What is a divorce?==
==What you should know==
A divorce is a court order that ends a marriage and is made under the ''Divorce Act''. Only married spouses can get a divorce to end their relationship; unmarried spouses cannot and do not need to divorce. Their relationships are over when they separate.


Some religions allow for religious or ritual divorces. These divorces do not legally terminate a marriage. In the eyes of the law, you and your spouse will remain married until a court makes a divorce order.
===Divorce ends a valid marriage===
Canada’s divorce law is called the [http://canlii.ca/t/7vbw ''Divorce Act'']. Under it, a court order for '''divorce''' ends a valid marriage. Only '''married spouses''' can get a divorce. Unmarried spouses can’t, and don’t need to.


A divorce order is necessary if you plan to or wish to marry again in the future.  
Some religions allow for religious or ritual divorces. These divorces ''don’t'' legally end a marriage. Under Canadian law, you and your spouse are married until a court makes a divorce order.


==What are the grounds for getting a divorce?==
To remarry, a married spouse first needs to get a divorce.
The ''Divorce Act'' applies to all divorces in Canada, whether you were married in Canada or elsewhere. Under the ''Divorce Act'', the only reason required for a divorce order is “marriage breakdown”. There are three basis on which marriage breakdown can be shown to have occurred:
*the spouses are separated and have lived separate and apart for at least one year,
*one spouse has committed adultery which the other spouse did not approve of or accept, or
*one spouse has been mentally or physically abusive to the other spouse, called “cruelty” in the ''Divorce Act'', which has made living together intolerable.  


Most people ask for a divorce order based on separation of at least one year. To claim a divorce based on adultery or cruelty, you must be able to prove that the adultery or cruelty occurred, and that can be difficult if the other spouse does not agree
===The grounds for getting a divorce===


''What does it mean to be separated for a year?''
The ''Divorce Act'' applies to all divorces in Canada, whether you were married in Canada or not. Under the ''Divorce Act'', to get a divorce you must prove your marriage has broken down. You can show '''marriage breakdown''' in one of three ways:
Separation usually means living in separate places. However, some couples can be separated even though they continue to live in the same home, as long as the marriage-like quality and intimacy of their relationship has ended. For example they no longer, sleep together, do chores for each other, go to family events together as a couple and so on.


==When does the one-year period of separation start?==
* the spouses are separated and have '''lived separate and apart for at least one year'''
Separation starts when one spouse tells the other that he or she wants to separate. The decision to separate can be made by one or both spouses. It is not necessary for both spouses to agree to the separation. 
* one spouse has committed '''adultery''' that the other spouse did not approve of or forgive
* one spouse has been mentally or physically abusive (or both) to the other spouse — called '''cruelty''' in the ''Divorce Act'' — which has made living together intolerable


==What if you reconcile for a short time?==
===Basing divorce on living separate and apart===
Spouses that are separated can get back together and live together again to try and make the marriage work. But within the one-year separation period, they can only live together in a marriage-like relationship for a total of 90 days or less in order to avoid having to restart the clock on the date of separation. If they live together for more than 90 days, the counting of the one-year period of separation starts all over again from the date of the last separation. For more information on separation, refer to script [[Separation and Separation Agreements (Script 115)|115]] on “Separation and Separation Agreements”.
Separation usually means living apart. But some couples can be living in the same home and still be separated, as long as the “marriage-like” quality and intimacy of their relationship has ended. For example, even though they live in the same home, they no longer:


==When can you get the divorce proceedings started?==
* sleep together
You can begin a court case for divorce any time after you have separated, as long as you have lived in the province in which you are starting the court case for at least one year immediately before the start of the court case.
* do chores for each other
* eat meals together
* share finances
* go to family events as a couple


==Which court do I go to?==
====When separation starts====
Although there are two courts that deal with family law problems in British Columbia: the Provincial Court of British Columbia and the Supreme Court of British Columbia, only the Supreme Court can make divorce orders under the ''Divorce Act'' and orders relating to property and debt division under the ''Family Law Act'' If you want a divorce, you will need to start a court action in the Supreme Court. The Provincial Court can only make orders under the ''Family Law Act'', including orders about parenting arrangements, child support and spousal support. These orders can also be made by the Supreme Court.  
Separation starts when one spouse tells the other they no longer want to be in the relationship. The decision to separate can be made by one or both spouses. It’s not necessary for both spouses to agree to the separation. Nor do they have to sign any documents or go to court to be separated.  


==What is a desk order divorce?==
====If you reconcile for a short time====
A “desk order divorce” is a court process that allows you to get a divorce order without going to court. Once a court case has started, and provided you and your spouse agree on the other orders you want the court to make or you and your spouse have signed a separation agreement, you can apply for the divorce order by filing a bunch of court forms, including:
Spouses who are separated can live together again to try and make the marriage work. Within the one-year separation period, they can get back together in a marriage-like relationship for '''up to 90 days''' without restarting the clock on the separation date. If they live together for '''more than 90 days''', the one-year separation period '''starts over''' if they break up again later. For more details, [[Separation and Separation Agreements|see our information on separation and separation agreements]].
*a Requisition asking for the divorce order,
*an Affidavit of Personal Service proving that your spouse was personally served with the documents beginning the court case,  
*a draft  of the divorce order, and  
*your affidavit giving the court the information it needs to decide if the divorce order is justified


If you have children, you will also have to file a Child Support Affidavit, which gives the court additional information about your income and your spouse’s income, and the arrangements that have been made for child support.
===Basing divorce on adultery or cruelty===


Refer to script [[Desk Order Divorces: The Do-It-Yourself Divorce Process (Script 121)|121]] on “Desk Order Divorces: The Do-It-Yourself Divorce Process” for more information.
'''Adultery''' is when a spouse has sex (even once) with someone who isn’t their spouse. You can’t claim a divorce based on cruelty or adultery that ''you'' committed. If you ask for a divorce based on '''your spouse’s''' adultery or cruelty, you must prove that the adultery or cruelty occurred. That can be difficult if the other spouse doesn’t agree. This is why most people ask for a divorce order based on having lived separate and apart for at least one year -- even if adultery or cruelty has occurred.


==What about adultery?==
====Proving adultery in a divorce proceeding====
Adultery is when a spouse has sex with someone who isn’t his or her spouse. Adultery is usually proved by having the spouse who committed adultery admit it in an affidavit. If your spouse won’t admit to the adultery, then you will have to prove it some other way, for example, by having your spouse or another witness testify about the adultery in court. It does not require the third party in which the adulterous behaviour occurred to be a party to the court case, but you may want that third party to be a witness to give evidence of the adulterous behaviour.
Adultery is usually proven by having the spouse who committed it say so in an '''affidavit'''. An affidavit is a legal document where a witness makes statements about facts they say are true.


==What about cruelty?==
If your spouse won’t admit to the adultery, then you will have to prove it some other way. Saying that you believe or suspect that your spouse committed adultery isn’t enough. A court will only grant a divorce based on adultery if it’s convinced there’s credible evidence that the adultery occurred.
Cruelty can be either physical or mental. You have to prove that your spouse’s behaviour toward you made it impossible for you to go on living together. Mental cruelty is more difficult to prove than physical cruelty. You should speak to a lawyer to see if you have enough evidence to prove cruelty.


==Is there an advantage to proving adultery or cruelty?==
You could prove your spouse committed adultery by having them, or another witness, testify in court about it. The person with whom your spouse committed adultery doesn’t have to be involved in the court case. But you can ask them to give evidence of the adultery.
Divorce is “no fault” in Canada, which means that the court rarely draws any conclusions from a spouse’s adultery or cruelty beyond making the divorce order without having to wait for the one-year period of separation to pass. The court will not take adultery or cruelty into account in dividing property or awarding support, and it will only take such behaviour into account when making decisions about children if the behaviour actually affects a spouse’s ability to parent the children and a spouse’s ability to become self-supporting after separation.


In certain circumstances, it is possible to make a claim for a financial award called “damages” if you can prove an assault occurred. This is a difficult claim to make and involves presenting medical evidence demonstrating the nature of the injuries and the consequences of those injuries. You should speak to a lawyer if you are thinking about making a claim for damages as a result of your spouse’s cruelty.
====Proving cruelty in a divorce proceeding====
You can establish the breakdown of a marriage by showing '''cruelty''' that makes living together '''intolerable'''. Cruelty can be either physical or mental abuse or both. You have to prove your spouse’s behaviour toward you made staying with them impossible. Mental cruelty is harder to prove than physical cruelty.


==Are there reasons why a judge won’t grant a divorce?==
To support your case, evidence can be provided in the form of police reports, medical records, text messages, emails, and photos of physical injuries or property damage caused by your spouse. You should speak to a lawyer to see if you have enough evidence to prove cruelty.
Yes, they are:
*collusion
*connivance
*condonation
*insufficient arrangements for child support


==What do collusion, connivance and condonation mean?==
===Starting divorce proceedings===
Collusion is when you plan with your spouse to lie to the court, either in an affidavit or through your testimony, to get a divorce order. For example, a couple agrees that they will lie about the date of separation to speed up the divorce process.
====When you can start divorce proceedings====
To start divorce proceedings in BC, you need to have lived in the province for '''at least one year''' immediately beforehand. This is the '''residency requirement'''. If you meet it, you can start a court action any time after you separate. But you can’t apply for a divorce order until ''after'' you’ve been separated for at least one year (if you’re applying for a divorce on the legal basis of being separated for a year).


Connivance is when one spouse encourages the other spouse to commit adultery or tricks the other spouse into committing adultery to speed up the divorce.
If you’re applying for a divorce on the basis of adultery or cruelty, you don’t have to wait. You can start your court action ''and'' make an application for divorce right away.


Condonation is when you have approved of your spouse’s adultery or cruelty. If you have approved of your spouse’s adultery or cruelty, you cannot use your spouse’s adultery or cruelty to claim a divorce.
====Which court you sue in====
Two courts deal with family law in BC: Provincial Court and Supreme Court. But '''only Supreme Court''' can make divorce orders under the Divorce Act. So that’s where you must start a court action if you want a divorce.


==What about insufficient child support?==
====Desk order divorce====
Before granting a divorce order, a judge must be satisfied that appropriate arrangements have been made for the financial support of the children. Most of the time, this means that child support is being paid in the amount required by the Federal Child Support Guidelines, whether because of a court order or a separation agreement. Refer to script [[Child Support (Script 117)|117]] on “Child Support” for more information on this.
A '''desk order divorce''' is a process that lets you get a divorce order without having to appear in front of a judge. It’s also called an '''undefended''' or '''uncontested divorce'''. You can apply for a desk order divorce once you and your spouse have resolved any other family law issues.


==What is annulment?==
Either one spouse, or both together, can apply for a desk order divorce in BC Supreme Court. The process involves preparing and filing several court forms.
A divorce is a court order which ends a valid marriage. An annulment is a court declaration that a marriage is invalid. If the court declares an annulment, then it is unnecessary to get a divorce.


For example, a marriage might be invalid if one spouse was already married when he or she married the other person, if one of the spouses was under the age of 16 at the time of the marriage ceremony, or if a spouse married someone other than the person he or she intended to marry. If the court finds that the marriage is invalid, it will make a declaration that the marriage is void, as if it had never happened. It is important to know that even if a marriage is annulled, the spouses are still able to make claims against each other about the parenting of children, the payment of support and the division of property and debt under the ''Family Law Act''.  
[[Desk Order Divorce: The Do-It-Yourself Divorce Process|We explain this process in our information on desk order divorce]].


The law about the annulment of foreign marriages is complicated. You should speak to a lawyer if you are thinking about trying to annul a foreign marriage.
===When the court will not grant a divorce===
The court '''won’t''' grant a divorce if neither you nor your spouse has lived in BC for at least a year. Here are some other situations in which the court won’t grant a divorce.


Some religions allow for religious annulments. These annulments do not legally void a marriage. In the eyes of the law, you and your spouse will remain married until a judge makes a declaration of annulment.  
====Collusion or connivance====
If you try to trick the court, the court won’t grant a divorce. '''Collusion''' is when spouses plan to lie to the court to get a divorce order. This can happen either in an affidavit or by way of oral statements made in court. An example is when a couple agrees they will lie about the date of separation to speed up the divorce.


==How long does it take to obtain a divorce?==
'''Connivance''' is when one spouse encourages the other to commit adultery, or tricks the other spouse into committing adultery to speed up the divorce.
This varies from case to case and will depend on how long it takes for the issues of parenting arrangements, child support, spousal support and division of family property and debt, all of which are called “corollary relief,” to be resolved. Except in special circumstances, all of the corollary relief must be resolved before a court will make a divorce order. Once the corollary relief is resolved, then a divorce can take 3 to 6 months to finalize, depending on what steps have already been taken by that point and how busy the court registry where the court case has been filed. The time it takes to get a divorce order may be shortened if a court application for divorce is done through a court hearing. For more information on this option you should speak with a lawyer.  


==Summary==
====Condonation====
To get a divorce, you must prove that your marriage has broken down. The reasons for marriage breakdown are separation for one year, your spouse’s adultery or your spouse’s cruelty toward you. Efforts to deceive the court through collusion or connivance, or your forgiveness of your spouse’s conduct may prevent the divorce from being granted. In all cases, before granting a divorce the judge must be satisfied that appropriate arrangements have been made for the financial support of the children. If the marriage was invalid, an annulment may be granted instead of a divorce.
Forgiving your spouse’s conduct may prevent a divorce from being granted on the grounds of adultery or cruelty. '''Condonation''' is when one spouse has approved of the other spouse’s adultery or cruelty.


==More information==
====Insufficient child support====
*For a step-by-step description of the desk order divorce process, see script [[Desk Order Divorces: The Do-It-Yourself Divorce Process (Script 121)|121]].
Before granting a divorce order, a judge must be satisfied that reasonable arrangements have been made for the financial support of the children. This usually means that adequate child support is being paid. (That is, the support payments meet the level required by the Federal Child Support Guidelines, either under a court order or a separation agreement.) [[Child Support (No. 117)|See our information on child support]].
*For a description of the process and copies of the necessary court forms, see the [http://wiki.clicklaw.bc.ca/index.php?title=Divorce Divorce page] of the wikibook ''JP Boyd on Family Law'', provided by Courthouse Libraries BC. And read more information about invalid and void marriages on [http://www.wiki.clicklaw.bc.ca/index.php/Marriage_&_Married_Spouses Marriage & Married Spouses page].


===Annulment is a court order declaring a marriage invalid===
An '''annulment''' means that, by law, you and your partner aren’t actually legally married. If the court declares a marriage annulled, you don’t have to apply for a divorce. While an annulment ends an '''invalid marriage''', divorce ends a valid marriage.


[updated April 2017]
A marriage is invalid when, for example:


'''The above was last reviewed for legal accuracy by Samantha de Wit of Brown Henderson Melbye and Zahra H. Jimale.'''
* one spouse was already married when they married the other person
* one of the spouses was under age 16 at the time of the marriage ceremony
* a spouse married someone other than the person they intended to marry


====Effect of annulment====
If the court annuls a marriage, it’s as if the marriage never happened.


Even if a marriage is annulled, spouses can still make claims against each other about the parenting of children, the payment of support, and the division of property and debt under the BC provincial ''Family Law Ac''t.


====Foreign marriages====
The law around foreign marriage annulment is complicated. If you want to annul a foreign marriage, you should speak to a lawyer who deals with annulments in the country where the marriage occurred.


This script only applies to married spouses. Unmarried spouses and other unmarried couples do not need to get a divorce and, because they are not married, cannot get an annulment.
Some religions allow for religious annulments. These annulments '''do not''' legally cancel a marriage or divorce people. The couple stays married until '''a court''' declares an annulment.


==What is a divorce?==
==Common questions==
A divorce is a court order, made under the ''Divorce Act'', that ends a marriage. Only married spouses need to get a divorce to end their relationship; unmarried spouses and other unmarried couples do not need to divorce. Their relationships are over when they separate.


Some religions allow for religious or ritual divorces. These divorces do not legally terminate a marriage. In the eyes of the law, you and your spouse will remain married until a judge makes a divorce order.
===How long does it take to get a divorce?===
The time to get a divorce varies. There may be many family law issues such as parenting arrangements, child support, spousal support, and division of family property and debt. All these issues must be resolved before a court will make a divorce order, except in special circumstances.


==What are the grounds for getting a divorce?==
Once your family law issues are resolved, a divorce can take three to five months to finalize, depending on:
The ''Divorce Act'' applies to all divorces in Canada, whether you were married inside Canada or elsewhere. Under the ''Divorce Act'', the one reason why a divorce order can be granted is because of “marriage breakdown”. There are three reasons why marriage breakdown may have occurred:


*the spouses are separated and have lived separate and apart for at least one year
* what steps have already been taken,
*one spouse has committed adultery which the other spouse hasn’t forgiven
* how busy the court registry is, and
*one spouse has been mentally or physically abusive to the other spouse, called “cruelty” in the ''Divorce Act'', and that spouse can no longer continue in the marriage
* if the spouses live in the same jurisdiction.


Most people ask for a divorce based on separation. To claim a divorce based on adultery or cruelty, you must be able to prove that the adultery or cruelty occurred, and that can be difficult.
It may be faster if an application for divorce is done through a court hearing. If you have a legitimate reason to speed up the process — for example, you’re getting remarried — you should speak with a lawyer.


==What does it mean to be separated for a year?==
===Does it make a difference if my divorce is based on adultery or cruelty?===
Separation usually means living in separate places. Some couples can be separated even though they continue to live under the same roof, as long as the marriage-like quality of their relationship has ended and they have stopped sleeping together, doing chores for each other, going to family events together and so on.
If you can show marriage breakdown based on adultery or cruelty, the court can make a divorce order sooner. That is, the court doesn’t have to wait until you’ve lived separate and apart for one year. But adultery can be hard to prove (and take longer and cost more) if the other spouse doesn’t agree. This is why most people ask for a divorce order based on having lived apart for at least one year.


==When does the one-year period of separation start?==
The court doesn’t consider adultery or cruelty when it divides property or makes a support order. It will consider adultery or cruelty when making decisions about children if the behaviour limits:
The start of separation is usually when one spouse tells the other that he or she wants to separate. The decision to separate can be made by one or both spouses. It is not necessary for both spouses to agree to the separation.


==What if you reconcile for a short time?==
* a spouse’s ability to parent the children, or
Spouses are separated can get back together and live together again to try and make the marriage work. But within the one-year separation period, they can only live together for a total of 90 days or less. If they live together for more than 90 days, the one-year period of separation starts all over again from the date of the last separation. For more information on separation, refer to script [[Separation and Separation Agreements (Script 115)|115]] on “Separation and Separation Agreements”.
* a spouse’s ability to become self-supporting after separation.


==When can you get the divorce proceedings started?==
In some cases, you can claim '''damages''' (money to compensate you) for a loss or injury caused by your spouse’s cruelty. This may be hard to do. You have to present medical evidence showing the nature of the injuries and their consequences. You should speak to a lawyer if you’re thinking about claiming damages caused by your spouse’s cruelty.
You can begin a court case for divorce any time after you have separated, as long as you have lived in the province in which you are starting the court case for at least one year.


==Which court do I go to?==
==Who can help==
Although there are two courts that deal with family law problems, the Family Court and the Supreme Court, only the Supreme Court can make divorce orders and other orders under the ''Divorce Act''. If you want a divorce, you will need to start a divorce proceeding in the Supreme Court.


==What is a desk order divorce?==
===With more information===
A “desk order divorce” is a court process that allows you to get a divorce without appearing in court at a trial. Once a court case has started, and providing you and your spouse agree on the other orders you want the court to make, you can apply for the divorce order by filing a bunch of court forms, including:
The '''Family Law in BC website''' from Legal Aid BC has free '''step-by-step guides''' for applying for a desk order divorce.


*a Requisition asking for the order,
* [https://family.legalaid.bc.ca/separation-divorce/getting-a-divorce/do-your-own-uncontested-divorce Visit website]
*an Affidavit of Service proving that your spouse was served with the documents beginning the court case,
*a draft order, and
*your affidavit giving the court the information it needs to decide if the divorce order is justified.
If you have children, you will also have to file a Child Support Affidavit, which gives the court additional information about your income and your spouse’s income, and the arrangements that have been made for child support. Refer to script [[Desk Order Divorces: The Do-It-Yourself Divorce Process (Script 121)|121]] on “Desk Order Divorces: The Do-It-Yourself Divorce Process” for more information.


==What about adultery?==
The BC government has a free step-by-step online tool, the '''Online Divorce Assistant''', to help couples with or without children apply for a divorce together.
Adultery is when a spouse has sex with someone who isn’t his or her spouse. Adultery is usually proved by having the spouse who committed adultery admit it in an affidavit. If your spouse won’t admit to the adultery, then you will have to prove it some other way, for example, by having your spouse or another witness testify about the adultery in court.


==What about cruelty?==
* [https://justice.gov.bc.ca/divorce Visit website]
Cruelty can be either physical or mental. You have to prove that your spouse’s behaviour toward you made it impossible for you to go on living together. Mental cruelty is more difficult to prove than physical cruelty. You should speak to a lawyer to see if you have enough evidence to prove mental cruelty.


==Is there an advantage to proving adultery or cruelty?==
The wikibook '''''JP Boyd on Family Law''''' explains the requirements for divorce in detail.
Divorce is “no fault” in Canada, which means that the court rarely draws any conclusions from a spouse’s adultery or cruelty beyond making the divorce order without having to wait for the one-year period of separation to pass. The court will not take adultery or cruelty into account in dividing property or awarding support, and it will only take such behaviour into account when making decisions about children if the behaviour actually affects a spouse’s ability to parent the children.


In certain circumstances, it is possible to make a claim for a financial award called “damages” if you can prove an assault occurred. This is a difficult claim to make and involves presenting medical evidence demonstrating the nature of the injuries and the consequences of those injuries. You should speak to a lawyer if you are thinking about making a claim for damages as a result of your spouse’s cruelty.
* [https://wiki.clicklaw.bc.ca/index.php?title=Divorce Visit website]


==Are there reasons why a judge won’t grant a divorce?==
===Free and low-cost legal help===
Yes, they are:
Options for legal help include legal aid, pro bono services, legal clinics, and advocates. [[Free and Low-Cost Legal Help|See our information on free and low-cost legal help]].
 
*collusion
*connivance
*condonation
*insufficient arrangements for child support
 
==What do collusion, connivance and condonation mean?==
Collusion is when you work with your spouse to lie to the court, either in an affidavit or through your testimony, to get a divorce. For example, if a couple agrees that they will lie about the date of separation to speed up the divorce process.
 
Connivance is when one spouse encourages the other spouse to commit adultery or tricks the other spouse into committing adultery to speed up the divorce.
 
Condonation is when you have forgiven your spouse for his or her adultery or cruelty. If you have forgiven your spouse, you cannot use your spouse’s adultery or cruelty to claim a divorce.
 
==What about insufficient child support?==
Before granting a divorce, the judge must be satisfied that appropriate arrangements have been made for the financial support of the children. Most of the time, this means that child support is being paid in the amount required by the Child Support Guidelines, whether because of a court order or a separation agreement. Refer to script [[Child Support (Script 117)|117]] on “Child Support” for more information on this.
 
==What is annulment?==
A divorce is a court order which ends a valid marriage. An annulment is a court declaration that a marriage is invalid. If the court declares that, it is unnecessary to get a divorce.
 
For example, a marriage might be invalid if one spouse was already married when he or she married the other person, if one of the spouses was under the age of 16 at the time of the marriage ceremony, or if a spouse married someone other than the person he or she intended to marry. If the court finds that the marriage is invalid, it will make a declaration that the marriage is void, as if it had never happened. It is important to know that even if a marriage is annulled, the parties are still able to make claims against each other about the parenting of children, the payment of support and the division of property and debt under the ''Family Law Act''.
 
The law about the annulment of foreign marriages is complicated. You should speak to a lawyer if you are thinking about trying to annul a foreign marriage.
 
Some religions allow for religious annulments. These annulments do not legally void a marriage. In the eyes of the law, you and your spouse will remain married until a judge makes a declaration of annulment.
 
==Summary==
To get a divorce, you must prove that your marriage has broken down. The reasons for marriage breakdown are separation for one year, your spouse’s adultery or your spouse’s cruelty toward you. Efforts to deceive the court through collusion or connivance, or your forgiveness of your spouse’s conduct may prevent the divorce from being granted. In all cases, before granting a divorce the judge must be satisfied that appropriate arrangements have been made for the financial support of the children. If the marriage was invalid, an annulment may be granted instead of a divorce.
 
==More information==
 
*For a step-by-step description of the desk order divorce process see script [[Desk Order Divorces: The Do-It-Yourself Divorce Process (Script 121)|121]].
*For a description of the process and copies of the necessary court forms, see the [[Divorce]] page of the wikibook ''JP Boyd on Family Law'', provided by Courthouse Libraries BC. More information about invalid and void marriages is available at [[Marriage & Married Spouses]].
 
 
[updated October 2014]
 
'''The above was last reviewed for accuracy by JP Boyd.'''
----


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Latest revision as of 03:42, 13 May 2021

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Samantha de Wit in April 2020.
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A divorce is the legal process that ends a valid marriage. It’s different from an annulment, which is a court order declaring a marriage invalid. An order for a divorce or an annulment is granted only if certain requirements are met. Learn about the requirements to get a divorce or annulment.

Alert!

This information has been updated to reflect changes to the Divorce Act that took effect on March 1, 2021.

What you should know

Divorce ends a valid marriage

Canada’s divorce law is called the Divorce Act. Under it, a court order for divorce ends a valid marriage. Only married spouses can get a divorce. Unmarried spouses can’t, and don’t need to.

Some religions allow for religious or ritual divorces. These divorces don’t legally end a marriage. Under Canadian law, you and your spouse are married until a court makes a divorce order.

To remarry, a married spouse first needs to get a divorce.

The grounds for getting a divorce

The Divorce Act applies to all divorces in Canada, whether you were married in Canada or not. Under the Divorce Act, to get a divorce you must prove your marriage has broken down. You can show marriage breakdown in one of three ways:

  • the spouses are separated and have lived separate and apart for at least one year
  • one spouse has committed adultery that the other spouse did not approve of or forgive
  • one spouse has been mentally or physically abusive (or both) to the other spouse — called cruelty in the Divorce Act — which has made living together intolerable

Basing divorce on living separate and apart

Separation usually means living apart. But some couples can be living in the same home and still be separated, as long as the “marriage-like” quality and intimacy of their relationship has ended. For example, even though they live in the same home, they no longer:

  • sleep together
  • do chores for each other
  • eat meals together
  • share finances
  • go to family events as a couple

When separation starts

Separation starts when one spouse tells the other they no longer want to be in the relationship. The decision to separate can be made by one or both spouses. It’s not necessary for both spouses to agree to the separation. Nor do they have to sign any documents or go to court to be separated.

If you reconcile for a short time

Spouses who are separated can live together again to try and make the marriage work. Within the one-year separation period, they can get back together in a marriage-like relationship for up to 90 days without restarting the clock on the separation date. If they live together for more than 90 days, the one-year separation period starts over if they break up again later. For more details, see our information on separation and separation agreements.

Basing divorce on adultery or cruelty

Adultery is when a spouse has sex (even once) with someone who isn’t their spouse. You can’t claim a divorce based on cruelty or adultery that you committed. If you ask for a divorce based on your spouse’s adultery or cruelty, you must prove that the adultery or cruelty occurred. That can be difficult if the other spouse doesn’t agree. This is why most people ask for a divorce order based on having lived separate and apart for at least one year -- even if adultery or cruelty has occurred.

Proving adultery in a divorce proceeding

Adultery is usually proven by having the spouse who committed it say so in an affidavit. An affidavit is a legal document where a witness makes statements about facts they say are true.

If your spouse won’t admit to the adultery, then you will have to prove it some other way. Saying that you believe or suspect that your spouse committed adultery isn’t enough. A court will only grant a divorce based on adultery if it’s convinced there’s credible evidence that the adultery occurred.

You could prove your spouse committed adultery by having them, or another witness, testify in court about it. The person with whom your spouse committed adultery doesn’t have to be involved in the court case. But you can ask them to give evidence of the adultery.

Proving cruelty in a divorce proceeding

You can establish the breakdown of a marriage by showing cruelty that makes living together intolerable. Cruelty can be either physical or mental abuse or both. You have to prove your spouse’s behaviour toward you made staying with them impossible. Mental cruelty is harder to prove than physical cruelty.

To support your case, evidence can be provided in the form of police reports, medical records, text messages, emails, and photos of physical injuries or property damage caused by your spouse. You should speak to a lawyer to see if you have enough evidence to prove cruelty.

Starting divorce proceedings

When you can start divorce proceedings

To start divorce proceedings in BC, you need to have lived in the province for at least one year immediately beforehand. This is the residency requirement. If you meet it, you can start a court action any time after you separate. But you can’t apply for a divorce order until after you’ve been separated for at least one year (if you’re applying for a divorce on the legal basis of being separated for a year).

If you’re applying for a divorce on the basis of adultery or cruelty, you don’t have to wait. You can start your court action and make an application for divorce right away.

Which court you sue in

Two courts deal with family law in BC: Provincial Court and Supreme Court. But only Supreme Court can make divorce orders under the Divorce Act. So that’s where you must start a court action if you want a divorce.

Desk order divorce

A desk order divorce is a process that lets you get a divorce order without having to appear in front of a judge. It’s also called an undefended or uncontested divorce. You can apply for a desk order divorce once you and your spouse have resolved any other family law issues.

Either one spouse, or both together, can apply for a desk order divorce in BC Supreme Court. The process involves preparing and filing several court forms.

We explain this process in our information on desk order divorce.

When the court will not grant a divorce

The court won’t grant a divorce if neither you nor your spouse has lived in BC for at least a year. Here are some other situations in which the court won’t grant a divorce.

Collusion or connivance

If you try to trick the court, the court won’t grant a divorce. Collusion is when spouses plan to lie to the court to get a divorce order. This can happen either in an affidavit or by way of oral statements made in court. An example is when a couple agrees they will lie about the date of separation to speed up the divorce.

Connivance is when one spouse encourages the other to commit adultery, or tricks the other spouse into committing adultery to speed up the divorce.

Condonation

Forgiving your spouse’s conduct may prevent a divorce from being granted on the grounds of adultery or cruelty. Condonation is when one spouse has approved of the other spouse’s adultery or cruelty.

Insufficient child support

Before granting a divorce order, a judge must be satisfied that reasonable arrangements have been made for the financial support of the children. This usually means that adequate child support is being paid. (That is, the support payments meet the level required by the Federal Child Support Guidelines, either under a court order or a separation agreement.) See our information on child support.

Annulment is a court order declaring a marriage invalid

An annulment means that, by law, you and your partner aren’t actually legally married. If the court declares a marriage annulled, you don’t have to apply for a divorce. While an annulment ends an invalid marriage, divorce ends a valid marriage.

A marriage is invalid when, for example:

  • one spouse was already married when they married the other person
  • one of the spouses was under age 16 at the time of the marriage ceremony
  • a spouse married someone other than the person they intended to marry

Effect of annulment

If the court annuls a marriage, it’s as if the marriage never happened.

Even if a marriage is annulled, spouses can still make claims against each other about the parenting of children, the payment of support, and the division of property and debt under the BC provincial Family Law Act.

Foreign marriages

The law around foreign marriage annulment is complicated. If you want to annul a foreign marriage, you should speak to a lawyer who deals with annulments in the country where the marriage occurred.

Some religions allow for religious annulments. These annulments do not legally cancel a marriage or divorce people. The couple stays married until a court declares an annulment.

Common questions

How long does it take to get a divorce?

The time to get a divorce varies. There may be many family law issues such as parenting arrangements, child support, spousal support, and division of family property and debt. All these issues must be resolved before a court will make a divorce order, except in special circumstances.

Once your family law issues are resolved, a divorce can take three to five months to finalize, depending on:

  • what steps have already been taken,
  • how busy the court registry is, and
  • if the spouses live in the same jurisdiction.

It may be faster if an application for divorce is done through a court hearing. If you have a legitimate reason to speed up the process — for example, you’re getting remarried — you should speak with a lawyer.

Does it make a difference if my divorce is based on adultery or cruelty?

If you can show marriage breakdown based on adultery or cruelty, the court can make a divorce order sooner. That is, the court doesn’t have to wait until you’ve lived separate and apart for one year. But adultery can be hard to prove (and take longer and cost more) if the other spouse doesn’t agree. This is why most people ask for a divorce order based on having lived apart for at least one year.

The court doesn’t consider adultery or cruelty when it divides property or makes a support order. It will consider adultery or cruelty when making decisions about children if the behaviour limits:

  • a spouse’s ability to parent the children, or
  • a spouse’s ability to become self-supporting after separation.

In some cases, you can claim damages (money to compensate you) for a loss or injury caused by your spouse’s cruelty. This may be hard to do. You have to present medical evidence showing the nature of the injuries and their consequences. You should speak to a lawyer if you’re thinking about claiming damages caused by your spouse’s cruelty.

Who can help

With more information

The Family Law in BC website from Legal Aid BC has free step-by-step guides for applying for a desk order divorce.

The BC government has a free step-by-step online tool, the Online Divorce Assistant, to help couples with or without children apply for a divorce together.

The wikibook JP Boyd on Family Law explains the requirements for divorce in detail.

Free and low-cost legal help

Options for legal help include legal aid, pro bono services, legal clinics, and advocates. See our information on free and low-cost legal help.

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