When a long-term relationship ends, a separation begins. When two people are married and decide to end their partnership, they will also need to get a divorce. Whether you are in a common-law relationship or married, legal representation can help provide guidance through this confusing and often unexpected experience.
When Can I Get a Divorce?
In Canada, married couples can be granted a divorce if one of the following three grounds can be established:
- Adultery; &
The first, the most common ground for divorce, is a separation for at least one year. The second and third grounds for divorce are “fault grounds”, and are if there has been adultery or cruelty. By proving either adultery or cruelty, a person is able to be granted a divorce prior to having completed the one year of separation.
These are rare grounds for a divorce to be granted on, however, because the court process can be lengthy and a year of separation will often occur before being able to prove in court that adultery or cruelty has occurred.
How do I go about getting a Divorce?
If you are wanting to get a divorce, but also wanting the assistance of the court in dealing with other issues surrounding your separation, such as custody, support, or property division, you can bring an Application to the court to ask for orders on these claims, including a divorce.
It may be that you do not have any other issues to deal with or you and your former partner have already come to an agreement, and the only thing left to do is to get a divorce. If this is the case, there are two different options: Simple Divorce or a Joint Divorce.
If you are still wanting time to work out an agreement for these issues, but are still wanting a divorce, you may be still able to have the court grant you a divorce prior to figuring everything else out. A court will not grant you the divorce however, if you have not made proper or reasonable arrangements regarding your children, including child support or other support for your child.
What is a Joint Divorce?
Unlike a simple divorce, a Joint Divorce is when the divorce application is brought by both you and your spouse together. Either you or your former spouse can fill out the Application for Divorce (8A Form), however, the other person must still sign the application as well. Both you and your spouse will be considered joint applicants, and there are no respondent.
Along with the Application for Divorce, you will have to prepare an Affidavit for Divorce and your former spouse will also have to prepare and file an Affidavit for Divorce, despite only one of you needing to prepare and file the Application. It is also necessary to prepare a Divorce Order for the judge to sign, and a Registration of Divorce Proceedings form, along with the Application for Divorce, and both Affidavits for Divorce.
Since marriage and divorce laws are within the federal government’s jurisdiction, it is necessary to ensure that there are no other divorce applications being made by yourself or your former partner in another part of Canada. The Registration of Divorce Proceedings is sent by the Courthouse to the Department of Justice to ensure that this isn’t the case. Once it has been determined there are no other applications, the Department of Justice will then send a clearance certificate to the courthouse in which you filed your Divorce Application. It is only upon receiving this clearance certificate that the Court can actually grant you a divorce.
Once the Court has granted the divorce, you will be provided with the signed Divorce Order. On the Divorce Order, it will state the date in which the divorce takes effect. This is usually 31 days after the date of the divorce order and is the day in which you are actually legally divorced. You technically are not divorced during this 31 day period, and could still change your mind.
What is a Simple Divorce?
A Simple Divorce is when an application is brought by one spouse. If your partner is not willing to fill out or sign off on the divorce application, it may be necessary to apply for the divorce yourself. If this is the case, you can file an Application for Divorce (8A Form), and check off that you are applying for a simple divorce only. You will need to issue your Application with the Courthouse and then serve a copy of the Application on your former partner. Assuming your partner lives within Canada, once they have been served with your Divorce Application, they have 30 days to file an Answer.
If your former partner does not file an Answer within 30 days, you should then prepare and file an Affidavit of Divorce and a Divorce Order with the Courthouse. If you have not already filed a Registration of Divorce Proceedings, this will have to be done as well. When your former spouse does not prepare and file an Answer, this is often called an Uncontested Divorce. Sometimes former couples will plan for the one to file for the divorce and the other to not respond to the Application.
If your former partner does end up filing an Answer within the proper timeframe, then this is considered a contested divorce, and they may even make new claims within their Answer in addition to the divorce. If you and your partner cannot come to an agreement on your own, it may be necessary to attend at Court to have a judge make a decision on the divorce and surrounding issues.