Requirements for Divorce and Annulment

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.

What is a divorce?

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.

What are the grounds for getting a divorce?

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
• one spouse has committed adultery which the other spouse hasn’t forgiven
• 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

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.

What does it mean to be separated for a year?

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.

When does the one-year period of separation start?

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?

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 115 on “Separation and Separation Agreements”.

When can you get the divorce proceedings started?

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?

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?

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:

• a Requisition asking for the order,
• 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 121 on “Desk Order Divorces: The Do-It-Yourself Divorce Process” for more information.

What about adultery?

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?

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?

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.

Are there reasons why a judge won’t grant a divorce?

Yes, they are:

• 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 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 a marriage 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 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]

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The testing of the claims in a court proceeding at a formal hearing before a judge with the jurisdiction to hear the proceeding. The parties present their evidence and arguments to the judge, who then makes a decision resolving the parties' claims against one another that is final and binding on the parties unless successfully appealed. See "action," "appeal," "argument," "claim," "evidence" and "jurisdiction."

In law, the re-examination of a term of an order or agreement, usually to determine whether the term remains fair and appropriate in light of the circumstances prevailing at the time of the review. In family law, particularly the review of an order or agreement provided for the payment of spousal support. See "de novo," "family law agreements," "order" and "spousal support."

A declaration by a judge that a marriage is invalid. The effect of such a declaration is to cancel the marriage from the moment it took place, as if the marriage never occurred. See "ab initio," "declaration," and "marriage, validity of."

The legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage" and "marriage, validity of."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

A legal relationship between two persons, whether of the same or opposite genders, that is solemnized by a marriage commissioner or licenced religious official and gives rise to certain mutual rights, benefits, and obligations. See also "conjugal rights," "consortium," and "marriage, validity of."

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

A person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government, or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal.

A married person's voluntary sexual intercourse with a person other than their spouse, also known as cheating, playing the field and fishing out of season. Proof of adultery is grounds for an immediate divorce, providing that the spouse complaining of the adultery can prove that the adultery occurred and that they have not consented to or forgiven the adulterous act. See "collusion," "condonation," and "divorce, grounds of."

In family law, the physical, verbal, emotional, or mental abuse of one married spouse by the other. Proof of cruelty is grounds for an immediate divorce, providing that the other spouse has not forgiven the cruelty. See "condonation" and "divorce, grounds of."

In family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however, it is possible to be separated but still live under the same roof. See "divorce, grounds of."

(1) The assertion of a legal right to an order or to a thing; (2) the remedy or relief sought by a party to a court proceeding.

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

Normally referred to as the "Supreme Court of British Columbia," this court hears most of the trials in this province. The Supreme Court is a court of inherent jurisdiction and has no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada."

A court proceeding under the Divorce Act in which a spouse seeks a divorce order. See "divorce."

A process in which a divorce order, with or without corollary relief, is obtained following the respondent's failure to defend the claim for divorce by filing a Response to Family Claim. A desk order divorce does not require a hearing in court and is the cheapest way to obtain a divorce order. See "corollary relief" and "divorce."

(1) In law, a court proceeding; a lawsuit; an action; a cause of action; a claim. (2) A historic decision of the court; case law. See "action," "case law, " "court proceeding," and "precedent."

(1) A preliminary version of a document, (2) an order prepared following judgment and submitted to the court for its approval, or (3) to prepare, or draw, a legal document.

Money paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.

A legal document in which a person provides evidence of certain facts and events in writing. The person making the affidavit, the deponent, must confirm that the statements made in the affidavit are true by oath or affirmation. Affidavits must be signed in front of a lawyer, a notary public or a commissioner for taking oaths, who takes the oath or affirmation of the deponent. Affidavits are used as evidence, just as if the person making the affidavit had made the statements as a witness at trial. See "deponent", "affirm," "oath" and "witness."

A person with direct, personal knowledge of facts and events relevant to the issues before the court; a person giving oral evidence in court on oath or affirmation as to the truth of the evidence given. See "affirm," "evidence," "oath" and "opinion evidence."

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

Facts, or proof tending to support the existence of facts, presented to a judge at a hearing or trial. Evidence can be given through the oral testimony of witnesses, in writing as business records and other documents, or in the form of physical objects. Evidence must be admissible according to the rules of court and the rules of evidence. See "circumstantial evidence," "hearsay" and "testimony."

In law, (1) a lawyer's bill to their client or a statement, or (2) a person's recollection of events.

Something which can be owned. See "chattels" and "real property."

In family law, the natural or adoptive father or mother of a child; may also include stepparents, depending on the circumstances and the applicable legislation; may include the donors of eggs or sperm and surrogate mothers, depending on the circumstances and the terms of any assisted reproduction agreement. See "adoptive parent," "assisted reproduction," "natural parent" and "stepparent."

A mandatory direction of an arbitrator, binding and enforceable upon the parties to an arbitration proceeding, made following the hearing of the arbitration trial proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to challenge or appeal the award in court. See "appeal," "arbitration," and "family law arbitrator."

An award of money payable by one party to a court proceeding to another, usually as compensation for loss or harm suffered as a result of the other party’s actions or omissions. In family law, damages are usually awarded to one party in compensation for breach of contract or spousal abuse. See "breach of contract" and "tort."

An agreement to do something with one or more other people towards an illegal or harmful goal. In family law, the court must satisfy itself that there has been no collusion between the spouses as to the ground of divorce before a divorce order will be made.

Intentionally causing or permitting a wrongful act to happen to achieve a certain goal. In family law, a married spouse conspiring towards the adultery of the other spouse for the purpose of claiming adultery as a ground of divorce would qualify as connivance. A divorce will not be granted where connivance as to the ground of divorce relied on is found. See "adultery," "collusion," "condonation," and "divorce, grounds of."

Forgiving the wrongful or harmful act of another. In family law, condonation usually refers to forgiving an act of adultery or cruelty and the continuation of the parties' relationship as it had been before, often inadvertently ending the innocent spouse's ability to apply for a divorce based on the adultery or cruelty. See "adultery," "cruelty, mental or physical," and "divorce, grounds of."

Oral evidence given by a witness in court or in an affidavit under the witness's oath or affirmation as to the truth of the statement. See "affirm," "evidence," "oath" and "witness."

A regulation to the federal Divorce Act, adopted by every province and territory except Quebec, that sets the amount of child support a parent or guardian must pay, usually based on the person's income and the number of children involved.

A contract intended to resolve all or some of the legal issues arising from the breakdown of a relationship and intended to guide the parties in their dealings with one another into the future. A typical separation agreement is signed following a settlement reached through negotiation and deals with issues including guardianship, parenting arrangements, contact, support, the division of property, and the division of debt. See "family law agreements."

In law, a pronouncement of the court about a fact or a state of affairs, such as a declaration that a marriage is void or that a person is the guardian of a child. Not to be confused with an order, which is a mandatory direction of the court requiring a party to do or not do something. See "order."

A sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed.