To end/dissolve a marriage in British Columbia – You need to apply for and be granted a Divorce Order in the Supreme Court of British Columbia.
To be granted a Divorce Order, you will need to show the Court that there has been a breakdown of your marriage. The following is an overview of the different ways in which you can show this to the Court.
Breakdown of the Marriage
According to section 8(2) of the Divorce Act, there are three ways in which a party can prove a breakdown of their marriage:
- Separation For at least One Year
If you and your spouse have been living “separate and apart” for at least one year, this may be sufficient evidence to prove a breakdown of your marriage.
To live “separate and apart” requires some degree of physical separation between the spouses. However, the degree of physical separation may be slight. In some cases, as long as each spouse is living their separate lives (even whilst still residing in the same home), they may be considered to be living “separate or apart”.
In addition to physical separation, at least one spouse must have the intention to end their marriage.
Generally speaking, this is the most common ground for divorce, as it is arguably the most straightforward to establish.
In most cases, you do not need to wait for one year to pass before starting the divorce process. You can start the legal proceedings before the year has come to an end, and once the one-year period of “separate and apart” has passed, the Court can grant the Divorce Order.
What if The Date of Separation is Disputed?
Should the spouses disagree on the exact date of separation, the Court may consider the following factors to determine the separation date:
- whether at least one spouse maintained their intention to separate;
- whether the intent to separate was clearly disclosed to the other spouse; and
- whether or not the intent was acted upon.
What Happens If We Decide to Get Back Together?
The Divorce Act allows for a 90-day period of reconciliation. If you and your spouse separate again during those 90 days, then the “clock” will not reset.
If, however, you remain together for a period longer than 90 days, you will have to restart the one-year period again should you decide to separate.
2. Physical or Mental Cruelty
If you are exposed to a level of cruelty that renders cohabitation with your spouse intolerable, this may be sufficient evidence to prove a breakdown of your marriage.
However, this can be a difficult way of seeking a Divorce Order because cruelty is subjectively understood. You will be required to provide the Court with examples of the unnecessary cruelty that you have experienced.
Some examples of physical and mental cruelty include, but are not limited to:
- verbal abuse such as threats, insults and harassment;
- excessive alcohol or drug abuse;
- sexual abuse; and
- physical abuse, such as beating.
If the Court is satisfied that the conflict is not merely superficial, then it may grant the Divorce Order.
If you have sufficient evidence to prove that your spouse committed adultery, this may be sufficient evidence to prove a breakdown of your marriage.
Only the spouse against whom the adultery was committed can use this as grounds for divorce. In other words, the spouse who committed adultery cannot apply for a Divorce Order on the grounds that he/she had an affair.
If you are considering seeking a Divorce Order on the grounds of adultery, you should keep the following points in mind (which apply in most cases):
- mere suspicion of adultery is not enough to prove the claim;
- whilst you won’t be expected to have caught them in the act or to identify the person with whom your spouse committed adultery, you should have adequate proof that the affair did take place;
- the affair must involve an extra-marital sexual relationship;
- the duration of the affair is irrelevant – you’ll only be required to prove that one act of adultery took place; and
- the affair must have taken place during the marriage.
In order to obtain a divorce immediately, you must be able to prove that there was adultery or mental and/or physical abuse during the marriage. The most accepted way of providing this evidence is to have your spouse admit to the affair or abuse in an affidavit.
However – It may be difficult to obtain an admission of guilt from your spouse in an affidavit.
Many will prefer to just wait for the one-year period of “separate and apart” to pass and seek a Divorce Order on those grounds instead.
In most cases, to be granted a Divorce Order, you will need to provide evidence to the Supreme Court of British Columbia that your marriage has failed due to any of the three grounds listed above in this article.
The breakdown of marriage and subsequent divorce can be emotionally and financially taxing on all parties involved. It is recommended that you seek guidance from a divorce lawyer as to the best options for resolution of your unique situation.
Contact Solimano Law today to speak with a family law lawyer.
Disclaimer – The information contained herein is of a general nature. It is not intended to be legal advice and it is not intended to address the exact circumstances of any particular individual or entity. No one should rely on or act upon such information without receiving appropriate professional advice and without a thorough examination of their particular situation. Please contact our office if you have any questions with respect to the content of this entry, this website, or our Terms and Conditions .