How to Apply for a Divorce
You need to apply to a court for a divorce.
As a general rule, to be able to divorce in Canada, you must meet ALL of the following criteria:
- You and your spouse are legally married under the laws of Canada, or under the laws of another country and that marriage is recognized in Canada.
- Your marriage has broken down.
- You or your spouse lived in the Canadian province or territory where you apply for your divorce for a full year immediately before making your application. (See the exception to this rule for certain non-residents who married in Canada)
Grounds for Divorce
Canada has no-fault divorce. The only ground for a divorce in the Divorce Act is marriage breakdown. The Divorce Act says you can show your marriage has broken down if any ONE of the following criteria applies to you:
- You have been living apart for one year or more.
- Your spouse has been physically or mentally cruel to you.
- Your spouse has committed adultery.
If you apply for a divorce on the basis of a one-year separation, you can live together for up to 90 days (either before or after you file the application) to try to reconcile. If things do not work out, you can continue your action for divorce as if you had not spent the time together.
Some couples choose to separate but still live in the same house. A lawyer can tell you what factors courts may consider when they are deciding if you are separated.
How to Start a Divorce Application
The Divorce Act is a federal law, but the provinces and territories are responsible for the processes for getting a divorce. You need to fill out the right forms for your province or territory and file them in a court. Or, your lawyer can do this work for you. You must follow the rules of the court that processes your divorce. You may also have to pay an application fee.
It is always a good idea to get legal advice before you apply. A lawyer can tell you about your rights and responsibilities and explain how the law applies to your situation. He or she can also explain what other documents you may need to give the court.
Depending on your province or territory, you might be able to get divorce application forms and information from:
- the website or office of your provincial or territorial Ministry of Justice or Attorney General
It will probably be best if you and your spouse can agree on major issues such as child support, custody and parenting arrangements, spousal support and property issues before you apply for a divorce. If you cannot agree, you can ask the court to decide. But if you do that, your divorce may take longer to complete. It will probably also be much more expensive and stressful for you and your family if the court has to make these decisions for you.
Your province or territory may offer family justice services such as mediation to help you make difficult decisions.
Exception to Residency Requirements
As a general rule, only Canadian residents can divorce in Canada. If neither you nor your spouse lives in Canada, you cannot get a divorce under Canada's Divorce Act. But you may be able to end your marriage under the Civil Marriage Act if you meet BOTH of the following criteria:
- You married in Canada; and
- You cannot undo your marriage in the country where you or your spouse lives because that country does not recognize your Canadian marriage.
To undo your marriage under the Civil Marriage Act, you would need to apply to a Superior Court in the province or territory where you married. A lawyer in that province or territory may be able to advise you on what you need to do. You may also be able to get information from a Superior Court or from the Department of Justice or Attorney General in the applicable province.
A process under the Civil Marriages Act only ends the marriage. You would need to resolve other issues such as child support and spousal support under the laws of the country where you live.
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