You’ve recently separated from your spouse and you’re wondering the process for obtaining a divorce.
The Divorce Act allows you or your spouse to apply for a divorce where there has been a breakdown of the marriage. There are three ways to establish that there has been a breakdown of the marriage:
- You and your spouse have lived separate and apart for one year at the time the divorce proceeding is commenced;
- You or your spouse has committed adultery; or
- You or your spouse has been treated cruelly, either physically or mentally by the other to make continued cohabitation “intolerable”.
Virtually all divorce applications are made based on the first condition.
Divorce Applications are made to a superior court, in Ontario, this is the Superior Court of Justice or the Unified Family Court. You must have the Application issued and served and your spouse will have an opportunity to respond to the Application for divorce. If they do not respond, or if they simply consent to your Application, you will complete an Affidavit in support of divorce. This is the document in which you further describe any agreements or arrangements made between you and your spouse. This is a very important document if you have children, as the court will not grant the divorce if there are not reasonable arrangements in place for your children. Most often, this means that you or your spouse is paying child support to the other in accordance with the Federal Child Support Guidelines.
After your Application is filed, any Answer is filed, and your Affidavit in support of divorce is filed, the court will issue the Divorce Order. You and your spouse may then obtain a Certificate of Divorce 31 days or more after the date of the Divorce Order.
Obtaining a divorce is a fairly straightforward process; however, obtaining a divorce affects your rights under the law. Most notably, the limitation period for a spouse to make property claims changes following the granting of a divorce. Our office advises that you consult with a lawyer to fully understand any rights or obligations that you may have pursuant to federal and provincial legislation.
The content of this article is intended to provide a general guide to the subject matter and is not legal advice. Specialist advice should be sought regarding your specific circumstance.