The Divorce Act is the federal legislation that applied to all divorces in Canada. Under the Act the parties are required to show that there has been a breakdown of the marriage as grounds for the divorce application. The two different leagal reasons for marriage breakdown are either a "marital offence" by the husband or wife or the separation of the couple for at least one year.
Marital Offences
The first and most notorious marital offence is adultery. Adultery occurs when either the husband or the wife wllingly has sexual intercourse with another individual and can occur even after the parties have separated. Pragmatically speaking it is often difficult to prove adultery. The allegedly adulterous party will rarely admit to the behviour due to the social stigma adultery attracts. Having a trial on the issue is often not worth the time and money since the parties can get a divorce by merely living separately for a year. Realistically speaking, where a party contests the accusations of adultery it could take as long as a year to get a trial date and in the meantime significant legal costs would have accrued to both parties. However if the adulterous party is willing to admit the behaviour the parties can speed up the divorce process in that they do not have to wait out the year of living separately. It is important to note that Canada has a no-fault divorce regime which means that adultery does not impact determinations of property division or child custody except to the extent that it can be proven that the adulterous behaviour had a serious negative impact on the psychological well being of the children. The instances in which such a finding will be made will be rare.
The second marital offence is for physical or mental cruelty. The government will not delay a divorce where a person is being physically or psychologically abused. Physical abuse can be easy to prove where there are police reports, pictures, witnesses, etc., however mental cruelty can be more difficult to nail down. The break up of a marriage is often rife with conflct that can be very difficult for the parties involved. In order to qualify as a marital offence the applicant will need to show more than a stormy, conflict ridden marriage. They will need to show a pattern of malicious behaviour that has had a significant effect on their psychological well being. In clear instances of mental or physical cruelty it will be worthwhile to seek an immediate divorce, however as with adultery it is often easier and cheaper to move on with your life and make the application after living a year apart.
One Year Separation
In most instances the parties deal with property and custody issues through a separation agreement at the outset of their break up and incorporate this document into their divorce proceeding one year after separation. There is nothing particularly significant about the one year period set out in the Divorce Act. It is merely an arbitrary date that the government chose before allowing couples a legal divorce. In other jurisdictions the separation requirement can be as little as one month. In any event, the loigic of separtion period is that couples may decide in that time to give it another shot. In other words the separation period is a policy decision made by the government in the hopes of upholding the instituion of marriage. It should be noted however that couples can re-unite during the serpation period for up to ninety days before the clock will start over on their separation period.
Chris Wendell - Chris is a practicing lawyer in Kelowna, British Columbia, Canada. His undergrad is in political economy. He currently writes for ...
