The family lawyers at Lenehan Musgrave understand that divorce can be a very complex and emotional process to go through. While a lawyer can assist you to navigate this process, it can be helpful to understand the different grounds on which you can file for divorce, to help determine if it is the right time for you to begin the process.
Establishing a Marriage Breakdown
It is important to understand that all grounds prove one issue, marriage breakdown. There is not a finding of fault in granting a divorce.
In Canada, the Court has the ability to grant a divorce if they are satisfied that there has been a breakdown of the marriage. Under section 8(2) of the Divorce Act, a breakdown of a marriage is established only if:
(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding; or
(b) one spouse has committed adultery, or treated the other spouse with physical or mental cruelty so that the other spouse has left the marriage.
Ground 1: Separation
Separation is the most commonly cited reason for divorce; it requires the spouses to establish that they have been living separate and apart for one year prior to finalizing the divorce. Spouses do not need to be living physically in different homes to be considered living “separate and apart;” however, they must demonstrate for the Court that even though they continue to live under the same roof, they remained separated.
There are a number of factors the Court may take into consideration to determine whether spouses residing together have separated. This can include whether the spouses sleep in the same bed, file their taxes together, attend social events together, have communicated to others their separated status, or participate in family events together.
The ground of separation is the most commonly pled ground in divorce proceedings.
Ground 2: Adultery
Adultery includes voluntary sexual conduct between a married person and someone other than their spouse. The spouse who has committed adultery cannot file for a divorce based on their actions – only the spouse can. This ground can be complex, and is very fact specific.
Ground 3: Physical or Mental Cruelty
In order for cruelty to be used as a ground for divorce, the cruelty must be “physical or mental cruelty of such kind as to render intolerable the continued cohabitation of the spouses.” This means that the spouse who is relying on this must provide sufficient evidence to establish for the Court that the level of cruelty is so serious that they are unable to continue living with their spouse and often requires evidence from a professional.
If you are seeking to move forward with a divorce, we encourage you to contact one of our family law lawyers to discuss which ground is most appropriate to your circumstances.
