A divorce is the legal process which terminates a marriage. Divorces in Canada are governed by the Divorce Act, which outlines the laws regarding divorce, the laws related to child support, custody and access for children of the marriage and the laws related to spousal support for married spouses.
Whether your divorce is complicated – involving issues of support, property division and parenting – or simple, the process is complex. Many documents must be filed to complete even the most straightforward, uncontested divorce and very specific procedural rules must be followed.
We recommend that, at a minimum, anyone seeking a divorce should have an initial consultation with a lawyer to receive a legal opinion regarding their possible rights and obligations. While obtaining a divorce in and of itself can be straightforward, a court order is always required. Sometimes, parties settle issues on their own, such as custody, access and support, and only apply to the court to obtain a divorce. Those cases, called which are called “uncontested divorces”, are straightforward and relatively inexpensive.
However, it is important to be fully aware of the impact a divorce can have on your rights. It is advisable to obtain legal advice from a lawyer before obtaining a divorce.
A divorce will not be granted unless you have been separated from your spouse for at least one year or you have established one of the other bases for a breakdown of the marriage (adultery or mental or physical cruelty).
If you have already been separated for at least a year, an application for divorce that does not include other claims, such as custody or access, support or division of property, can usually be completed within four to six months.
You may be considered to be living separate and apart while continuing to live in the same home, although it will depend on the facts in your case. Generally, the courts require clear evidence that spouses are no longer living together in a spousal relationship when they continue to live in the home. If you are not sure about whether you would be considered separated in your circumstances, we can assist you to make this determination.
If your application includes other claims, the time that it takes to complete the case will depend on how complicated the issues are and whether the parties can agree on all or some of the issues.
However, the court may not grant the divorce before the other issues have been decided. For example, if you have children, a court will not grant a divorce until you have shown that you have made adequate child support arrangements.
Please contact our offices to discuss whether proceeding with an uncontested divorce is the right choice for you.