Divorce is the final, legal ending of a marriage. Deciding to end a marriage is difficult. You have to deal with huge emotional issues and make many tough decisions. You also need to know your legal rights and responsibilities.
Divorce in Canada is governed federally by the Divorce Act . To get a divorce in Canada, you will have to show that your marriage is over. The law says marriage breakdown has occurred if:
- you and your spouse have lived separate and apart for one year with the idea that your marriage is over;
- your spouse has committed adultery; or
- your spouse has been physically or mentally cruel to you, making it unbearable to continue living together. Cruelty may include acts of physical violence and those causing severe mental anguish.
Most divorces in Canada are based on one year separation. ‘Living separate and apart’ does not necessarily mean living in separate homes – you can be separated but share the same home for various reasons such as parenting children or saving money.
Starting a Divorce Action
To commence a divorce action, one of the parties (of which one must be resident of Alberta) file a Statement of Claim for Divorce. They may also decide to file for a division of the matrimonial property within the same Statement of Claim. Statement of Claim for Divorce will also propose parenting of any children of the marriage and support for the child or the applying spouse. The filed Claim is then served on the other spouse.
The responding Spouse may choose to file a Statement of Defence (meaning they disagree with the proposed Claim), Demand of Notice (they agree with the proposed terms of the divorce) or file a Counterclaim, which proposes a separate proposal with respect to property, support or parenting. This counterclaim for Divorce would then be served on the other spouse.
Once the parties have been Ordered by a court or have agreed via a matrimonial property or settlement agreement with respect to the division of property, parenting of children, and the payment of support for any child of the marriage or their spouse, they may apply for the divorce to be final. A Divorce Judgment shall be forwarded to the court and 30 days after the divorce Judgment has been signed, the parties may file for a Certificate of Divorce. Neither spouse can remarry until the Certificate of Divorce is obtained.
Deciding to end a marriage is difficult. You have to deal with huge emotional issues and make many tough decisions. You also need to know your legal rights and responsibilities. RCIM LLP can assist you if you wish to file for divorce or have been served with legal documents to end a marriage.