Separation & Divorce
Separation & Divorce
Getting married is easy. Getting divorced is hard
The separation of spouses takes an enormous emotional and financial toll on a family.
Trust is shattered, routines are uplifted, conflicts are amplified, and money becomes tighter. In short, things will never be the same again. While dealing with the breakdown of the marriage can be hard enough, life does not get put on hold. Children still need to be cared; bills and expenses still have to be paid; work and all of the other responsibilities that existed prior to the separation continue. Important decisions often have to be made early in the process of separation.
Getting good and timely advice is essential to minimizing the financial impact on you, your spouse, and your children. There are going to be a lot of people offering advice on what you should do. While the support of family and friends is going to be essential to getting through a divorce, it is important that you get legal advice about your rights and responsibilities.
Divorce in British Columbia
Every year, British Columbian courts process approximately 10,000 divorces. In the vast majority of cases, a divorce is granted on the basis of the parties having lived separate and apart for at least one year. This is sometimes called a “no-fault” divorce, and is different from the other two grounds for divorce – adultery and intolerable cruelty – which can be granted immediately but require the aggrieved spouse to prove the underlying act.
In almost all cases, a divorce is sought by one spouse (or sometimes both spouses together) filing an application with the Supreme Court of British Columbia seeking a divorce, and related claims regarding [hyperlink 3.1.c – parenting arrangements] parenting arrangements for any children of the marriage, child support, spousal support, and property division.
The court requires proof of the parties’ marriage, which usually involves filing a marriage certificate that states the date and location of the marriage. If a marriage certificate is prepared in a foreign language, it is necessary to have the document translated to English by a court-certified interpreter. If there is no marriage certificate, there are [future hyperlink to article] special steps that can be taken to prove that the parties are married.
In cases involving children, there are additional requirements to obtain a divorce. The court must be satisfied that reasonable arrangements have been made for the support of any children.
Although every divorce must be granted by a Supreme Court judge, very few divorces are granted in open court with the parties having to appear before the judge. Most divorces are processed as what is called a “desk order divorce”, meaning that a judge reviews documents submitted by the parties or their lawyers, and decides whether the requirements for a divorce have been met.
Date of Separation
The law is clear that parties must live separate and apart for one year in order to get a divorce. The law is less clear when it comes to determining the date that the parties actually separated. While it can be straightforward in some cases – such as when one spouse moves out of the family home – it can be more complicated in cases where spouses continue living in the same house but in separate bedrooms.
In part, the challenge in determining the date of separation reflects that each marriage is different, and determining when the marriage is at an end may depend on circumstances particular to that marriage. Courts have emphasized that that it is a fact-driven inquiry, and must take account of all the circumstances. Broadly speaking, courts consider the intention of the parties to end the relationship, and whether their words and actions are consistent with those intentions. This means a court will ask:
- Did at least one spouse have the intention to separate?
- Was the intention to separate communicated to the other spouse?
- Was the intention to separate acted upon? In other words, using generally accepted characteristics of marriage, did one or both spouses take action that is consistent with the separation, such as:
a. changing how they behaved with each other in public; and
b. changing how they behaved with each other in private.
In answering these questions, courts will often consider communications between the spouses and other people, financial arrangements, living arrangements, the level of intimacy between the spouses or any other factor the court considers relevant.
The date of separation can have important implications for property division, [hyperlink 3.1.b.vii. – pension division] pension division, and spousal support. If you are unsure of the date of separation, or how it may impact your family law case, it is important to get legal advice about it before signing any agreement.
Annulments and divorces both result in spouses no longer being married, but they do so in a different way and have different requirements and consequences. When a divorce is granted, it means that the parties status as married ends on the date the divorce takes effect. The parties were, from a legal perspective, married from the date of marriage until the date of divorce. An annulment, on the other hand, means that the marriage was void from the outset and the parties were never legally married.
While it is common to read about short-lived celebrity marriages being annulled in the United States, it gives rise to a very important misconception about annulments – that they depend on the length of the marriage. An annulment does not exist as a sort of “take-back” of an ill-conceived marriage that fell apart about as quickly as it began. Rather, the requirements for an annulment are very specific and do not depend on the time that the parties were married (although an annulment of a long-standing marriage may still impart legal obligations between the spouses for things such as spousal support and property division).
Whenever you attend a wedding in BC, the spouses must say words to the effect that “I solemnly declare that I do not know of any lawful impediment why I, A.B., may not be joined in matrimony to C.D.” If it turns out that there was a “lawful impediment” to the marriage, it may be grounds for an annulment. This is because, in order to obtain an annulment, there must be a legal defect in the marriage. A legal defect goes back to the requirements for a valid marriage, including that neither party is already married to another person, that both parties have legal capacity to marry, and the other requirements of the Marriage Act.
Although people may have specific religious reasons for wanting an annulment as compared to a divorce, annulments are exceedingly rare in British Columbia and difficult to obtain. It requires a successful petition to the court for a declaration that the marriage is null and void. As part of the petition, the party seeking the annulment must produce evidence to satisfy the court of a defect in the lawfulness of the marriage. It does not matter that the spouses agree that an annulment is preferable to a divorce – the evidence must still meet the legal requirements for an annulment.
It is another misconception that an annulment can be granted solely because a marriage was never consummated. In order to get an annulment in that circumstance, the applicant must prove both that the marriage was never consummated, and that consummation is a practical impossibility due to either a physical incapacity or a mental incapacity of one of the parties amounting to an “invincible aversion” to the physical act of consummation. In other words, not only was the marriage not consummated, but it was not capable of being consummated.
If you are contemplating an annulment, it is important to get legal advice regarding the requirements and process. An unsuccessful petition for an annulment could result in the court awarding legal costs of some or all of the proceedings to your spouse. Further, if the grounds for the annulment are that you were married to another person, you could face prosecution for polygamy or for violating the Marriage Act.