As a follow up to Rain Henderson’s 2015 interview with News1130 discussing the Ashley Maddison breach, Michael Proskiw takes us through the grounds and requirements that must be satisfied before a Court will grant a divorce.
When will the Court Grant a Divorce?
There are grounds and requirements that must be satisfied before a Court will grant a divorce. Additionally, there are bars to divorce that, if present, may prevent the Court from granting a divorce.
Grounds and Requirements for Divorce
Marriage breakdown is the only ground for divorce and may be granted on a fault or no-fault basis. However, there are little to no consequences for causing the marriage’s breakdown. For example, if your spouse cheated on you, you will not have an increased chance of achieving a favourable outcome in property division, support payments, custody disputes, or other matters of similar ilk because of your spouse’s infidelity.
Marriage breakdown can be established by living separate apart for one year, or if adultery or cruelty occurs:
Living Separate and Apart
Living separate and apart is established where you and your spouse have lived separate and apart for one year immediately preceding the divorce judgment and are living apart at the time of your divorce proceeding.
Spouses can be said to be living separate and apart, even if they are living under the same roof, where there is a complete withdrawal from the performance of matrimonial duties and obligations:
- Occupation of separate bedrooms
- Absence of sexual relations
- Little, if any, communication between the spouses
- Eating meals separately
- No social activities
- Spouses do not perform domestic services for each other unless there is a contract for those services
Evidence of each indicia is beneficial in showing the Court that you have lived separate and apart for one year. However, it is not necessary to establish all six elements.
Adultery allows the divorce to proceed prior to the one year barrier. For example, if there is proof of adultery and it is not disputed by the adulterer, then the judge is required to grant the divorce. Note that only the spouse that did not commit the adultery can apply for divorce.
Cruelty also allows the divorce to proceed prior to the one year barrier. Cruelty is a ground for divorce if one spouse treats their spouse with physical or mental cruelty of such a kind that makes living together unbearable. Cruelty of such a kind only needs to occur once before a spouse may ask the Court for a divorce. Like adultery, only the spouse who did not commit the cruelty can apply for divorce.
Practically speaking, adultery and cruelty are seldom used as grounds for divorce anymore because divorce can be granted on a no-fault basis. As previously mentioned, the fact that one spouse may be a victim is not relevant in divorce proceedings. The only advantage of claiming adultery or cruelty is that you can avoid the one-year waiting period.
Bars to Divorce
There are three bars to divorce that may prevent the Court from granting a divorce: collusion, connivance, and condonation:
Collusion occurs if you and your spouse make an agreement to fabricate evidence in order to convince the Court to grant your divorce. For example, collusion would occur if you and your spouse claim that you have been living separate and apart for greater than one year, when you and your spouse have been living separate and apart for less than one year. Collusion is an absolute bar to divorce, which means spouses guilty of collusion will not be allowed to divorce.
Connivance is the process of encouraging the other spouse into actions that would result in a marriage breakdown. For example, connivance would occur if one spouse encouraged the other to commit adultery. Connivance is a discretionary bar to divorce, which means the Court still has the option of granting the divorce even though the spouses participated in connivance.
Condonation occurs when one spouse forgives the other for committing adultery or cruelty and the spouses continue or resume living together. Like connivance, condonation is a discretionary bar to divorce.
For more information about any aspect of divorce, please contact our Edmonton office.