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What are the grounds for divorce?

As a divorce lawyer in Calgary, I am frequently asked: What are the grounds for divorce?

The grounds for divorce are contained in the Divorce Act, and are the same all over Canada. They are that:

a) The spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or

b) The spouse against whom the divorce proceeding is brought has, since the celebration of the marriage,

i) Committed adultery; or

ii) Treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses

What many people fail to realise is that, under b)(i) and (ii) above, they cannot rely upon their own conduct. So for example, if spouse A has committed adultery, spouse A cannot rely upon that adultery to obtain a divorce. Spouse B can, but spouse A cannot.

Many clients also believe that it is not possible to file a divorce until the parties have been separated for at least a year. This is simply not true. Either party may file a divorce action as soon as the parties separate. While neither party will be able to apply for a Divorce Judgment until they have been separated for at least one year, the parties may use the time to resolve the issues of custody, access, child support, spousal support and division of matrimonial property.

It is also possible to rely upon more than one ground as they are not mutually exclusive. However, care should be exercised when choosing the ground(s) to be relied upon as many times the other spouse will not admit that adultery has been committed, or that they have treated the other with cruelty. If they do not do so, it will likely take the parties more than a year to go to trial and have a Judge determine that fact, so it may, in reality, be more efficient to simply rely upon the one year separation as the ground.

It would be a very rare case indeed where any financial settlement is affected by the ground chosen, as the Divorce Act specifically excludes a Court from taking spousal misconduct into account when making a spousal support award.

If you have any questions regarding the above, please do not hesitate to contact me via telephone on 403-538-2105, or via email here.

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