Obtaining a Divorce?
Divorces can be obtained by either the husband or the wife after the couple have been living separate and apart for one year. This does not necessarily mean that the couple have to have been living in separate places. It is possible to be living separate and apart in the same house if you no longer share your life with the other person.
It is also possible to obtain a divorce before one year of separation has passed, if a spouse asking for the divorce has evidence of adultery by the other spouse, or has been the victim of cruelty by the other spouse. In order to obtain a divorce under these circumstances, some proof is needed. In the case of adultery, an admission by Affidavit of adultery by the other spouse is sufficient. It is important to note that the spouse committing adultery cannot be the person to petition for divorce on the grounds of adultery.
The simplest way to obtain a divorce is to have an uncontested divorce proceeding. This can happen when the husband and wife have already settled all the issues between them, perhaps by way of a Separation Agreement. A Separation Agreement can set out custody, child support, spousal support, agreements respecting the sale of or possession of the matrimonial home, and the division of other assets such as RRSPs, savings, and household goods.
When all the financial and other matters have been settled by the couple to their satisfaction, or a Separation Agreement is in effect, obtaining a divorce is a relatively simple matter. The person who starts divorce proceedings (the Petitioner), can have the other spouse served with a Petition for Divorce. That person has a certain amount of time to object if they wish to. If they do not wish to contest the divorce, they need not respond to the Petition. In this way the divorce will proceed automatically after the time for responding is ended. A divorce judgment will be signed by a judge and then 30 days later if neither party objects, a divorce certificate is available and the divorce is considered final and both people are free to remarry. It is essential to obtain this divorce certificate if either party wishes to remarry.
If both spouses wish, they can also bring a Joint Petition for Divorce, this can reduce the cost as neither party has to be personally served with the Petition for Divorce. Under either of these circumstances, a divorce can be obtained within a few months provided that the spouses have been separated for one year.
However, if a divorce proceeding is commenced together with requests for other relief, such as custody or support, then the divorce may be substantially delayed until all the other aspects in the divorce have been dealt with by way of negotiating settlement or by Court Order. In particular, the Court is reluctant to permit a divorce to go ahead if the interests of any minor children have not been properly taken care of first.
