Getting divorce is never pleasant, but it can be simplified if the parties know what to expect. Removing the parties’ anxiety about the process can help each of them deal with whatever anger they may feel for their soon-to-be ex-marital partner and focus on the issues that must be resolved.
The following summary assumes that the parties have reached an agreement on material issues such as child custody, child support and alimony. The only issue in these circumstances, then, is obtaining a legal end to the marriage.
Only the courts are legally able to issue an order that ends a marriage. The parties may have settled their differences, but a valid court order is still necessary to make a divorce effective. All marriages in Canada are subject to the federal Divorce Act, which states that a court can grant a divorce if it finds that “a breakdown of the marriage” has occurred. The courts will recognize the existence of a breakdown if the couple has been separated for at least one year. The existence of a marital breakdown can also be proved if the party seeking the divorce is able to prove that the other spouse has committed adultery or cruelty. Most couples rely on the one-year separation test to avoid the more painful necessity of providing adultery or cruelty.
Canadian family law views all marriages as “no fault.” That is, the court will not use the conduct of either party in deciding issues such as child custody, child support or alimony. The only two lawful grounds for divorce are the one-year separation and the existence of either cruelty or adultery.
If a couple has in fact negotiated an agreement on all issues that will be affected by the divorce, such as property division, child custody, child support and alimony, and if both agree that the marriage should be terminated, they can file an application for divorce with the court. The filing must include a proposed Divorce Order. Those who need assistance negotiating and litigating divorce legal issues and obtaining a final order should consider consulting with an experienced family law attorney.