Divorce is a challenging process, both emotionally and legally. In Canada, the system operates on a “no-fault” basis, meaning you don’t need to prove wrongdoing by your spouse to obtain a divorce. This article addresses some common questions surrounding Canada’s no-fault divorce system.
Understanding No-Fault Divorce in Canada
Under the Divorce Act, there is only one ground for divorce: marriage breakdown. This breakdown can be established in one of three ways:
- Separation for at least one year: This is the most common ground. You and your spouse must have lived separate and apart for at least one year before the divorce can be granted.
- Adultery: One spouse has committed adultery.
- Cruelty: One spouse has treated the other with physical or mental cruelty, making continued cohabitation intolerable.
It’s important to note that even with adultery or cruelty, many couples still choose to proceed on the basis of separation, as it can be a simpler and less contentious process.
Frequently Asked Questions About No-Fault Divorce
1. What does “separate and apart” mean?
“Separate and apart” doesn’t necessarily mean living in separate residences. It means living as though the marriage has ended. This can include sleeping in separate rooms, not sharing meals, and no longer functioning as a couple. Even if you continue to live in the same house, you can be considered separated.
2. Do I need my spouse’s consent to get a divorce?
No, you don’t need your spouse’s consent. If you meet the requirements for proving marriage breakdown, you can apply for a divorce, even if your spouse doesn’t agree. However, their cooperation can significantly speed up the process.
3. What happens to our assets in a no-fault divorce?
Canadian law dictates that assets acquired during the marriage are subject to division. This doesn’t necessarily mean a 50/50 split, but rather an equalization of net family property. This involves calculating the net worth of each spouse at the time of marriage and at the time of separation, and then equalizing the difference.
4. What about child custody and support?
Child custody and access are determined based on the best interests of the child. The court will consider factors such as the child’s needs, the parents’ ability to provide care, and the child’s own wishes (depending on their age). Child support is typically calculated based on federal and provincial child support guidelines, considering the income of the paying parent and the number of children.
5. How long does a no-fault divorce take?
The timeline can vary significantly depending on the complexity of the case. An uncontested divorce, where both parties agree on all terms, can be finalized relatively quickly. However, contested divorces involving disputes over property, custody, or support can take considerably longer.
6. Do I need a lawyer?
While it’s possible to navigate a divorce without a lawyer, seeking legal advice is highly recommended. A lawyer can provide guidance on your rights and obligations, help you navigate the legal process, and ensure that your interests are protected.
Understanding the principles of no-fault divorce in Canada can make the process less daunting. While the legal aspects can be complex, seeking professional advice and understanding your rights are crucial steps in navigating this challenging life transition.