Legal Reasons for Divorce
Strictly speaking, there is only one ground for divorce under Canada’s Divorce Act: marriage breakdown. There are three ways in the Act why a marriage is considered to have broken down:
- If the spouses have lived separate and apart for at least one year and continue to live apart when the divorce proceedings start.
This does not necessarily mean they have to live in different residences; the courts accept the notion of spouses living separate and apart under one roof. What is required is that the two parties are living separate lives, sleeping in different bedrooms, preparing their meals separately, and no longer behaving as a couple in the eyes of the world. However, simply being separated does not qualify; for example if one spouse has taken work in another city or is away at university, that alone does not count as a separation under the Divorce Act. There have to be problems with the marriage that were the reason for the separation. You do not have to wait a full year before starting divorce proceedings. You can begin the application process as soon as you and your spouse are separated. The courts just won’t grant you a divorce until the full year of separation is completed.
- If one of the spouses is proved to have committed adultery.
Adultery by a spouse is considered confirmation of marriage breakdown and can result in an immediate divorce order. There are some stipulations that surround this apparent quick route to a divorce. The person who has committed adultery cannot start the divorce proceedings; only the other spouse may do so. This prevents someone going out and committing adultery simply to obtain a quickie divorce. Nor can there be collusion between spouses, where one agrees to the act merely to fast-track their divorce. The courts are also careful to find out if the offended spouse condoned or forgave the adultery, and will refuse the divorce if they did. While I’m sure that adultery plays a role in the breakdown of numerous marriages in Canada, for most people, waiting out the year of separation is an easier route to go. It has none of the connotations of blame or suggestions of lurid behaviour that come with adultery. We have no-fault divorce here in Canada.
- If one spouse has subjected the other to mental or physical cruelty to an extent that it makes the possibility of living together intolerable.
Only the spouse who has been mistreated can use mental or physical cruelty as a reason for divorce. Joint requests for divorce on this ground are not accepted. Proving cruelty can be difficult if the other spouse doesn’t admit to it. And even if cruelty is proved, the spouse responsible is not going to be punished by the judge. It is merely used as a reason for granting a divorce. I recommend that you don’t file for divorce on the ground of cruelty. It is likely to make your divorce messier and much more expensive. The heightened emotional turmoil involved will only make resolving the other issues in the divorce that much more difficult. Besides, by the time the fight has dragged through the courts, you probably will have spent a year anyhow.
Hiring a Private Investigator
For some, the tell-tale signs that their partner may be having an affair is more than they can bear. A loved one’s betrayal and dishonesty rank among the most distressing things to go through in life. Hiring a private investigator to find out the truth can put your assumptions and fears to rest. And if your suspicions are justified, the evidence gathered will help in a divorce on the grounds of adultery. But bear in mind, that for the other grounds for divorce – cruelty and separation – a spouse’s infidelity is not legally relevant.
Signs your Spouse may be unfaithful:
- Acting secretively with their phone or computer;
- Becoming more possessive over their belongings;
- Unexplained expenses: charges for flowers, dating sites, large cash withdrawals, trips, etc.;
- Emotional intimacy has faded: significantly less or different sex in your relationship;
- An altered schedule: involving less quality time and attention, excuses to avoid doing things together, an unusual work schedule;
- They’re putting more effort into their appearance;
- You’ve started catching your partner in lies;
- Sudden difference in hobbies and interests;
- Periods where your partner is unreachable;
- When confronted about cheating, your partner gets angry, deflects, or avoids conversation.