The decision to apply for divorce brings with it a wealth of confusion, uncertainty and instability. At a time like this, the more information you have, and the more you understand what you’re getting into, the better prepared you will be for making the right decisions. Here are the answers to some questions you’re probably asking yourself about what lies ahead.
What are the rules that govern divorce in Ontario?
Divorce in Ontario is governed by the Divorce Act. To get a divorce in Ontario, you will have to show that your marriage has broken down. The law says marriage breakdown has occurred if:
- you and your spouse have lived separate and apart for one year with the idea that your marriage is over*; or
- your spouse has committed adultery (had sexual intercourse with someone else); or
- your spouse has been physically or mentally cruel to you, making it unbearable to continue living together. Cruelty may include acts of physical violence and those causing severe mental anguish.
Almost all divorces in Canada are based on one year of separation. ‘Living separate and apart’ does not necessarily mean living in separate homes – you can be separated but share the same home for various reasons (children, money, etc.). For example, even if you and your spouse only started living in different residences 3 months ago, your date of separation may still be earlier than that depending on the circumstances.
What is the difference between separation and divorce?
Separation occurs when one or both spouses decide to live apart with the intention of ending their marriage. Once you are separated, you may need to deal with your spouse in relation to issues concerning any children you have, such as custody and child support, and you may also need to work out issues dealing with spousal support and property. You can resolve these issues in different ways:
You can negotiate a separation agreement. A separation agreement is a legal document signed by both spouses, which details the arrangements you have agreed on. In some jurisdictions, independent legal advice is required to make the document legally binding. This is not a requirement in Ontario, however a party to the agreement must fully understand the agreement.
You can make an application to the court to request an order for custody, support and property arrangements.
You can come to an informal agreement with your spouse. However, if one party decides not to honour the agreement, you will have no legal protection.
How do I apply for divorce?
It is always advisable when applying for divorce to speak to an experienced family law A lawyer who specializes in family law can tell you exactly how the law applies to your situation and how to protect your rights. You can then decide what to do.