Frequently Asked Questions
The answers set out below are intended to provide general information.
Every person's situation is unique, and the following information should not be taken as legal advice.
There is no legal requirement for you to become divorced unless you want to remarry. Many people however get divorced simply to bring closure.
Probably not. Court appearances are usually reserved for defended or complex divorce actions.
Yes, but certain steps must be taken before the court will allow you to proceed.
No. Just as with any law suit, anyone can act for himself or herself.
However, if you want anything other than the divorce itself you would be well advised to consult with a lawyer. In many cases people getting divorced also have issues relating to children, support or property to be dealt with. In those cases you should see a lawyer experienced in family law matters to make sure your rights are being fully protected.
In Canada there is only one ground for divorce: breakdown of the marriage. Paragraph 8 (2) of the Divorce Act states that "Breakdown of the marriage" is established only if:
(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
(b) the spouse against whom the divorce proceeding is brought has, since the celebration of the marriage:
(i) committed adultery, or
(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses."
The most common way to establish a breakdown of the marriage is to prove that the spouses have lived apart (have been separated) for at least one year immediately before the divorce judgment is granted and were living separate and apart at the time the proceedings began. That is, if you are using one year of separation to establish the breakdown of the marriage you can't begin the proceeding until after the spouses are already separated and can't finalize it until at least one full year of separation. But you don't have to wait a year of separation to get the proceedings started.
Sometimes one of the parties wants to get the divorce without waiting the year from date of separation. This can be done if adultery or cruelty can be established. Usually raising one of these to show a breakdown of the marriage will cause more upset and aggravation than it is worth. If the other side simply decides to deny the allegation you may have converted an uncontested divorce into a contested one and it likely won't be finalized within the year anyway. Almost all divorces begun nowadays show breakdown by one year separation.
Yes. The Divorce Act makes a distinction between the act of getting people freed from the legal relationship of marriage and finalizing the various other issues that may still exist between them such as spousal support, child support, custody and access. These other things are called collateral issues and they can be dealt with after a divorce or as part of the divorce proceedings, but after the divorce itself has been granted. This allows parties who want to remarry to do so without forcing them to first settle the corollary issues.
Obviously, bringing the legal relationship of marriage to an end is the chief function of the divorce proceeding. As well, the Divorce Act allows the court to deal with issues of spousal support, child support, custody and access.
Most often the divorce itself is not contested. In those cases the party being served with the divorce documents may choose not to oppose the request for a divorce and not file any responding material. This usually happens where the parties have already negotiated the terms of their separation and have a separation agreement, marriage contract or cohabitation agreement. The divorce judgment in these cases may include the terms already agreed upon or not make any reference to anything but the divorce itself.