Do You Need a Separation Before You Apply for a Divorce?
The only way to legally end a marriage is by divorce. In the vast majority of cases, spouses will have to be separated for a certain amount of time before they can qualify for a divorce. One or both spouses can apply to the courts for a divorce order any time after the relationship ends, but the reality is that BC courts will not grant a divorce until the spouses have been separated for one year, with a few limited exceptions which will be discussed below.
Breakdown of a Marriage: The Grounds for Applying for a Divorce
BC courts are only able to grant a divorce order if there has been a breakdown of the marriage. Canada’s Divorce Act applies to separation, marriage and divorce in BC. It sets out the three ways that breakdown of a marriage can be established for the purposes of obtaining a divorce:
- Living separate and apart. Married spouses are eligible for a divorce if they 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.
- Adultery. Spouses are eligible for a divorce if the spouse against whom the divorce proceeding is brought has, since the celebration of the marriage, committed adultery. It is not necessary for the spouses to live separate and apart for any particular period of time if relying on this ground.
- Cruelty. Spouses are eligible for a divorce if the spouse against whom the divorce proceeding is brought treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses. It is not necessary for the spouses to live separate and apart for any particular period of time if relying on this ground.
The Divorce Act requires the spouse applying for divorce to establish a breakdown of the marriage on one of the three grounds set out above. In other words, to obtain a divorce, the application to the court must identify which of the three “grounds for divorce” is being relied upon and also provide proof to satisfy the court that there has been a breakdown of the marriage for the stated reason.
Separation Is the Most Used Ground for Divorce in BC
Most married spouses apply for a divorce on the grounds that they have been living separate and apart for a period of at least one year, rather than because of adultery or cruelty. If you allege that your spouse had sex with someone else during your marriage or was physically or mentally abusive toward you, and your spouse denies your allegations, you must provide evidence to the court to substantiate the affair or the abuse.
It can be difficult to prove adultery or cruelty, whereas in the vast majority of cases, it is relatively straightforward to prove that you and your spouse have lived separate and apart for at least a year. (See here for my previous discussion of issues such as how to determine the date of separation and proving intention to live separate and apart while still living under the same roof).
Other Considerations When Applying for a BC Divorce
As discussed above, the “one-year separation” route is typically the least complicated and inexpensive way for spouses to obtain a divorce. On its face, it may seem that applying for a divorce on the grounds of adultery or cruelty may result in a quicker divorce. The reality, however, is that obtaining a divorce based on the grounds of adultery or cruelty in many cases takes longer than a year to be processed due to the backlog in the BC courts. Even if there has been abuse or infidelity in the marriage, it may be less costly, quicker, and less stressful to apply for a divorce based on the ground that there has been a one-year period of separation.
It is worth noting that there is no advantage to be gained by applying for a divorce on the basis of one spouse’s adultery or cruelty, as a spouse’s entitlement to property division, support, and custody or access to the children is not affected by the reason for the divorce, or whether or not the divorce is alleged to be the fault of one of the spouses.
Let Valerie M. Little, Divorce Lawyer, Guide You Through Your Separation and Divorce
Your marriage is not legally ended until a judge grants you a divorce order. If you have questions about divorce law or how to begin the BC divorce application process, contact Valerie M. Little at 604-526-3333 for answers and advice. Valerie is a family lawyer with over 30 years of experience who would be pleased to meet with you in New Westminster, Coquitlam or Burnaby to discuss your unique family law circumstances and help you prepare a strategy for moving forward.