Filing for divorce & ways to prove marital breakdown

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Divorce in Canada is federally regulated. This means that no matter where a divorce is filed in Canada, it is done under the same law. This law is called the Divorce Act. There are other laws that may apply in your divorce too – for example, there are separate laws for dividing property, like Nova Scotia’s Matrimonial Property Act.

Divorce in Canada is always based on the ground of ‘marital breakdown.’ This can be proven in three ways:

1.     One year’s separation, with the intention of ending the marriage relationship

2.     Mental or physical cruelty that has made living together unbearable

3.     Adultery, if the other spouse has not condoned (excused or forgiven) the adultery

Divorce in Canada is ‘no fault’ if you apply based on one year's separation. This means that you do not have to prove which spouse was to blame for the marriage breaking down. This information does not affect the outcome of the divorce, or ‘who gets what.’ The court does not want this information.

If you are filing a joint application for divorce, you can ONLY apply on the basis of one year’s separation. For a joint divorce, you can’t file any documents until a full year has passed since the separation. This is because you have to swear in your documents that you have been separated for a year, and you can only do that once that is true!

Cruelty and adultery are not used very often as the basis for divorce because they require that evidence be given to the court to prove that these things happened. For adultery, this usually means either having the spouse who committed the adultery admit this under oath in an affidavit, in court, or during a ‘discovery.’ Proving the grounds of cruelty is even more complicated.

You should talk to a lawyer if you are thinking about using either cruelty or adultery as the basis for your divorce. Remember, claiming or proving that adultery happened will not affect what happens in your divorce. For example, it will not affect who gets the children, or how much child support or spousal support someone will have to pay. The only difference is that you do not have to wait one year to file for your divorce. While you may be able to file for divorce earlier, the divorce process may take longer, as proving adultery or cruelty will often add extra document preparation and court time to the process.