Divorce Law

The term divorce simply refers to the “paper process” of exchanging your marriage certificate for a Divorce Order. Couples seeking to terminate their marriage in Ontario are subject to the federal Divorce Act, which states that a court may grant a Divorce Order to parties where there has been a “breakdown of the marriage.”

A successful Application for divorce will satisfy the court that there has been a breakdown of the marriage, which occurs when one of the three criteria are met:

a) you and your spouse have lived separate for one year with the idea that your marriage is over; or

b) there has been adultery that has not been forgiven by the other spouse

c) there has been physical or mental cruelty, making it impossible to continue living together. (This may include acts of physical violence and those causing severe mental anguish).

One of these grounds for divorce must be outlined in the court Application that commences the first step to obtaining a divorce Order. A divorce Application can take several months to finalize; however, the actual divorce will not be granted until the one-year period of separation has elapsed.

Uncontested Divorce

As mentioned, a divorce is recognized when there has been a breakdown of marriage which occurs when the parties have been separated for at least one year or where the party filing the application proves that their spouse has committed cruelty or adultery. However, if none of these things have occurred but both you and your spouse mutually agree to terminate the marriage, it is an uncontested divorce and it is a much simpler process.

For an uncontested divorce, you must file an Application for divorce with the court that is located in the municipality where either you or your spouse have lived for at least one year.

The Application must be filed, served and registered together with a filing fee and a copy of the marriage certificate or marriage registration certificate, if available. Child support arrangements and any prior court orders or domestic contracts relating to support that have been obtained previously by either partner must also be filed. Finally, both partners must include a draft divorce Order that includes applicable documents in situations where child or spousal support is also being settled as a part of the uncontested divorce.

Once all this documentation is in order, the court will issue a divorce Order to you and your spouse. The divorce Order officially takes effect on the 31st day after the date it was granted by the court.

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It is a reality of modern life that not every marriage lasts forever. The divorce rate has been steadily rising throughout the North America for decades. If you are considering ending your marriage, you should learn something about the process in advance.

You may file for divorce only in a state where you are a resident. Almost all Provinces and Territories require a certain period of residency before a person can file for divorce there. If you know that your spouse is planning to file for divorce in another state, you may want to file first in the state where you live to avoid the expense of traveling for divorce proceedings.

Changes to related agreements involving alimony, child custody, or child support must be made in the state where the divorce was granted. All Provinces will recognize a divorce properly granted in any other Province but is not required to do so if the original Province did not have jurisdiction over the couple.

Spouses who are considering divorce when they are over 50 may face unique challenges. There may be a range of implications for your retirement plans, health care plans, Social Security benefits, and benefits related to ownership of a family home. Discussing these implications with a divorce lawyer before filing for divorce may help you uncover potential issues and identify optimal strategies for reaching the best outcome.

Hiring a lawyer to represent you in a divorce can have advantages and disadvantages. If your relationship with your spouse is so broken that you cannot communicate effectively with him or her, or if your spouse was abusive, you likely will want a lawyer to help protect your rights. You also should get a lawyer if your spouse has a lawyer.

If you can work out the key issues in a divorce without a lawyer, both parties may be able to save significant money on legal fees. Handling a divorce without counsel may be better suited for couples ending a short-term marriage with comparable wages and no significant assets or children.

That said, the primary benefit of hiring a lawyer is so you understand your legal rights, particularly in a complex divorce. If one party has separate property or the couple has significant marital property, minor children, or major differences in income, the couple would almost certainly benefit from assistance of counsel in their divorce. While divorce lawyers can exacerbate the tension in a family already under stress simply by representing their clients with full energy, they can also guide their client through a collaborative divorce process that defuses the pressure during this unfortunate time.

Choosing Between Fault and No-Fault Divorces

A key distinction to know is the difference between fault and no-fault divorces. All Provinces now permit no-fault divorces, which are easier and more common way to end a marriage. In a no-fault divorce, neither spouse needs to show that the other spouse did something wrong. A spouse instead must provide a reason that Provincial aw recognizes as sufficient to show that the couple cannot get along. This is often termed “incompatibility” or “irreconcilable differences.” Often state require that the spouses live apart for a certain period before they are eligible to file for a no-fault divorce.

Some states also allow fault divorces, which require one spouse to prove that the other spouse did something wrong. This is the traditional form of divorce, but it has become less widely used than no-fault divorce. The most typical ground for granting a fault divorce is cruelty, which covers emotional distress as well as physical pain. A spouse also can seek a fault divorce based on adultery, desertion, imprisonment, or lack of sexual capacity.

A fault divorce is less straightforward than a no-fault divorce, but some people still find it an appealing option. In contrast with a no-fault divorce, a fault divorce does not require a separation period. The spouse who is not at fault also is more likely to get more of the marital property, a larger alimony amount, and custody of any children.

But a fault divorce also has downsides that sometimes offset its advantages. A spouse cannot stop the other spouse from getting a no-fault divorce, while a fault divorce can be contested. The spouse against whom the fault divorce is sought can argue that he or she is not at fault, or that the other spouse tolerated or provoked the activity on which the divorce is based. In reality, however, courts usually are reluctant to deny someone’s request for any type of divorce because forcing people to remain married seems harsh and contrary to good public policy.

Distinguishing Divorce from Annulment

As an alternative to divorce, an annulment is even less common than legal separation. When a court grants an annulment, the marriage will be treated as though it never happened, which can be useful to members of some religions who want to remarry (although some religious institutions grant religious annulments, which do not typically affect the individuals’ legal relationship).

Like a fault divorce, a civil annulment requires a spouse to provide a specific reason for seeking it. These reasons include fraud, lack of consummation, incest, bigamy, mental impairment, coercion, or marriage to a spouse below the age of consent. As you can see, a court will grant an annulment only in limited cases. When a couple seeks an annulment within a short time after a marriage, the court often has little to decide in terms of marital property, child custody, or child support. However, annulments can end longer marriages as well. You should be aware that any children born in a marriage that is annulled will not be considered illegitimate.