Arsh Samra Law | Criminal & Family Law Lawyer | Vancouver BC
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Surrey Divorce Services

Surrey Divorce Lawyer

 

WHAT ARE THE GROUNDS TO GRANT A DIVORCE?

A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of the marriage.

Breakdown of Marriage Under the Divorce Act

The sole ground for divorce is marriage breakdown. Breakdown of marriage is established if:

(1) the spouses have lived separate and apart for at least one year immediately prior to the determination of the divorce and were living separate and apart when the proceeding was commenced;or

(2) the spouse against whom the divorce is sought has committed adultery; or

(3) the spouse against whom the divorce is sought has been guilty of cruelty.

Do I Have to Wait One Year Before Filing for Divorce?

No, however, the parties do have to live separate and apart. However, the divorce is granted after the one-year period of living separate and apart has expired.

What Counts as Separate and Apart?

For the purpose of calculation, the spouses are deemed to have lived separate and apart if they lived apart and either of them had the intention to live separate and apart from the other. The period of separation may start even before the parties have physically separated meaning, the parties may be living separate and apart under the same roof.

What if We Get Back Together?

Under, the Divorce Act, parties may actually reconcile and engage in normal marital relations for a period not in excess of 90 days without affecting the running of the one-year period of separation.

WHEN CAN A COURT HEAR A DIVORCE PROCEEDING?

A court in a province has jurisdiction to hear and to determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.

Who is Considered an Ordinary Resident of British Columbia?

A person is ordinarily resident in the place where he or she normally or customarily lives and his or her life is centered about. There are several other factors that go into determining whether someone is an ordinary resident including the individual's state of mind. In the determination of ordinary residence, for divorce purposes, the most important factor is the arrival in the place where the new abode is to be, rather than the intention to establish the abode in the future.

Can a Person Be an Ordinary Resident in More than One Place at the Same Time?

Yes.

What About Other Types of Relief (Collorary Relief)?

A court in a BC has jurisdiction to hear and determine a corollary relief proceeding if either former spouse is ordinarily resident in the province at the commencement of the proceeding or both former spouses accept the jurisdiction of the court. The court retains a discretion to decline to grant a divorce in advance of a resolution of the corollary relief.

What if I want to Separate Divorce from the Other Issues in My Case?

The court may sever (separate) the issues of divorce and corollary relief.

WHAT ABOUT A FOREIGN DIVORCE?

Can a Court in BC Vary Corollary Relief of a Foreign Divorce Judgment?

Canadian courts have no jurisdiction under the Divorce Act to vary the provisions of corollary relief pursuant to a foreign divorce judgment.

WHAT ABOUT A RELIGIOUS REMARRIAGE?

If a spouse or former spouse does not agree to remove any barrier to the other spouse remarrying, the court may take action against the defaulting spouse.

WHAT ABOUT ADULTERY AND CRUELTY?

Under the Divorce Act, adultery and cruelty are technically speaking, not grounds for divorce but are proof of the marriage breakdown, which is the only real ground for divorce. Living separate and apart, cruelty, and adultery are separate means of proving marriage breakdown and are not to be interrelated.