Difference between revisions of "Requirements for Divorce and Annulment"

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.  

A '''divorce''' is a court order under the ''[http://canlii.ca/t/7vbw 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.

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

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:

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.

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.

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.   

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 (Script 115)|separation and separation agreements (no. 115)]].

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.)   

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''' 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)

We explain the desk-order process in more detail in our information on [[Desk Order Divorces: The Do-It-Yourself Divorce Process (Script 121)|desk-order divorce (no. 121)]].

The court will not grant a divorce in certain situations.  

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.

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.

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 (Script 117)|child support (no. 117)]] has more on this.

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.

*if a spouse married someone other than the person they intended to marry  

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''.

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.

'''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.

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.

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.  

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.

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.

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