Requirements for Divorce and Annulment

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Samantha de Wit, Brown Henderson Melbye and Zahra H. Jimale, Jimale Law Corporation in October 2018.

A divorce is a court order ending a valid marriage. Annulment is a court order declaring a marriage to be invalid. Each order is granted only if certain requirements are met.

Understand your legal rights

Married spouses need to divorce to end their legal relationship

A divorce is a court order under the Divorce Act that ends a valid marriage. Only married spouses can get a divorce; unmarried spouses cannot and do not need to divorce. Their relationships end when they separate.

Some religions allow for religious or ritual divorces. These divorces do not legally end a marriage. In law, you and your spouse remain married until a court makes a divorce order.

A married spouse will need to get a divorce order if they ever want to remarry.

The grounds for getting a divorce

The Divorce Act applies to all divorces in Canada, whether you were married in Canada or elsewhere. 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 which the other spouse did not approve of or accept
• 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 having lived separate and apart for at least one year. To claim a divorce based on adultery or cruelty, you must be able to prove the adultery or cruelty occurred. That can be difficult if the other spouse does not agree.

Living separate and apart

Separation usually means living in separate places. However, some couples can be separated yet still 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, eat meals together, or go to family events as a couple.

When separation starts

Separation starts when one spouse tells the other they want 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.

If you reconcile for a short time

Spouses that are separated can get back together and 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 date of separation. If they live together for more than 90 days, the one-year period of separation starts over if they later break up again. For more details, see our information on separation and separation agreements (no. 115).

Starting divorce proceedings

When you can start divorce proceedings

You can sue for divorce any time after you have separated. (To bring divorce proceedings in BC, you do need to have lived in the province for at least one year.)

Which court you sue in

Two courts deal with family law in BC, Provincial Court (also called Family Court) and Supreme Court. But only Supreme Court can make divorce orders under the Divorce Act. If you want a divorce, you must sue in Supreme Court.

A desk-order divorce allows you to avoid going to court

A desk-order divorce is a process that lets you get a divorce order without going to court. Once you and your spouse have agreed on the various issues that need to be resolved, you can apply for the divorce order by filing several court forms. These forms include:

• a requisition for the order (this is a document asking for the divorce order)
• an affidavit of service saying your spouse was personally served with the documents beginning the court case (an affidavit is a legal document where a witness makes statements about facts they say are true)
• your affidavit giving the court your evidence in support of the divorce order
• a draft of the divorce order

If you have children, you will also have to file an affidavit dealing with child support. This affidavit gives the court more information about your income and your spouse’s income, and the arrangements for child support.

If you and your spouse agree, you can also seek a divorce jointly, which requires you to file documents together in support of the divorce.

We explain the desk-order process in more detail in our information on desk-order divorce (no. 121).

Situations where the court will not grant a divorce

The court will not grant a divorce in certain situations.

Collusion or connivance

If you try to deceive the court, the court will not grant a divorce. Collusion is when spouses plan to lie to the court to get a divorce order. It can be either in an affidavit or through testimony. For example, if a couple agree they will lie about the date of separation in order 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. 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 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, either under a court order or a separation agreement. Our information on child support (no. 117) has more on this.

Annulment is a court order declaring a marriage invalid

An annulment means that, according to the law, you and your partner were not actually married. If the court declares an annulment, then it is unnecessary to get a divorce. A divorce is a court order which ends a valid marriage.

Circumstances that can make for an invalid marriage include:

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

Effect of annulment

If the court annuls a marriage, it is 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 Family Law Act.

Foreign marriages

The law about the annulment of foreign marriages is complicated. You should speak to a lawyer who deals with annulments in the country you are dealing with if you want to annul a foreign marriage.

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

Common questions

How is adultery proven in a divorce proceeding?

Adultery is when a spouse has sex with someone who isn’t their spouse. Adultery is usually proved by having the spouse who committed adultery admit it in an affidavit. If your spouse won’t admit to adultery, then you will have to prove it some other way — for example, by having your spouse or another witness testify in court about the adultery. This does not require the other party in the adultery to be a party to the court case, but you may want them to give evidence of the adultery.

What kind of behaviour does cruelty include?

You can establish the breakdown of a marriage by showing cruelty that makes living together intolerable. Cruelty can be either physical or mental. You have to prove your spouse’s behaviour toward you made it impossible for you to go on living together. Mental cruelty is harder 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 basing a divorce on adultery or cruelty?

Establishing the breakdown of a marriage by showing adultery or cruelty means the court can make the divorce order sooner. The court doesn’t have to wait until you’ve lived separate and apart for one year.

The court does not consider adultery or cruelty when it divides property or awards support. It will consider adultery or cruelty when deciding about children if the behaviour affects 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) if you can prove an assault occurred. This is 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 are thinking about claiming damages caused by your spouse’s cruelty.

How long does it take to get a divorce?

The time to get a divorce varies. It depends on how long it takes to settle the various issues that need to be resolved: 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 the various issues are resolved, a divorce can take three to six months to finalize, depending on what steps have already been taken and how busy the court registry is. 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 are getting remarried — you should speak with a lawyer.

Get help

With more information

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

Web: wiki.clicklaw.bc.ca

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