5,109
edits
Difference between revisions of "Divorce (3:IV)"
From Clicklaw Wikibooks
→3. Grounds for Divorce
| Line 39: | Line 39: | ||
=== 3. Grounds for Divorce === | === 3. Grounds for Divorce === | ||
In accordance with s 8(1) of the ''DA'', either or both spouses may apply for a divorce on the ground that there has been a breakdown of their marriage as evidenced by separation for a year, adultery, or physical or mental cruelty. For the divorce action to succeed, the claimant must have valid grounds under s 8(2)(a) or 8(2)(b), and the respondent must be unable to raise a valid defence. Most divorces are based on separation rather than adultery or cruelty, in part because the accusing party must prove adultery and/or cruelty on the balance of probabilities. Where a claim for divorce based on adultery or cruelty has been filed for more than one year before the application for divorce is heard, the Court will usually grant the divorce on the ground of one year separation. | In accordance with s 8(1) of the ''DA'', either or both spouses may apply for a divorce on the ground that there has been a breakdown of their marriage as evidenced by separation for a year, adultery, or physical or mental cruelty (see below). For the divorce action to succeed, the claimant must have valid grounds under s 8(2)(a) or 8(2)(b), and the respondent must be unable to raise a valid defence. Most divorces are based on separation rather than adultery or cruelty, in part because the accusing party must prove adultery and/or cruelty on the balance of probabilities. Where a claim for divorce based on adultery or cruelty has been filed for more than one year before the application for divorce is heard, the Court will usually grant the divorce on the ground of one year separation. | ||
Note the decision of [http://canlii.ca/t/4zgl ''McPhail v McPhail'', 2001 BCCA 250], in which the Court found that, where both the grounds of cruelty and the grounds of a one year separation for divorce exist, it would be appropriate for a trial judge to exercise his or her discretion to grant the divorce on the grounds of a one year separation (no-fault) instead of on cruelty (fault). This was extended in [http://canlii.ca/t/fw3t1 ''Aquilini v. Aquilini'', 2013 BCSC 217] to state that a one year separation should be used as the grounds for divorce instead of adultery where both exist. | Note the decision of [http://canlii.ca/t/4zgl ''McPhail v McPhail'', 2001 BCCA 250], in which the Court found that, where both the grounds of cruelty and the grounds of a one year separation for divorce exist, it would be appropriate for a trial judge to exercise his or her discretion to grant the divorce on the grounds of a one year separation (no-fault) instead of on cruelty (fault). This was extended in [http://canlii.ca/t/fw3t1 ''Aquilini v. Aquilini'', 2013 BCSC 217] to state that a one year separation should be used as the grounds for divorce instead of adultery where both exist. | ||
