Originally Published: July, 2022.
Updated: January 2024.
For most, divorce is an unsettling process that requires many difficult conversations with your spouseIn many cases, it may be difficult to get that spouse’s consent to a divorce.
So, is it possible to get a divorce without the consent of my spouse in Canada? The answer to this question is not straightforward.
Under Canadian law, if you meet specific grounds for divorce, you do not need your spouse’s consent to get a divorce. However, there are also ways that your spouse can prevent you from getting a divorce. In this article, we will explore the grounds for divorce in Canada, when a judge will not grant a divorce, and what happens if you are not granted a divorce.
Three Grounds For Divorce In Canada
For much of Canada’s history, there was no codified law of divorce. Because of this, when a spouse wanted to get divorced, they would have to petition Parliament and get them to grant a divorce by passing a special piece of legislation.
It wasn’t until 1968 that Canada introduced the Divorce Act, which is used today to uniform the divorce process across the country.
Here are the current three grounds for divorce in Canada.
- Living separate and apart for at least one year;
- Cruelty, and;
- Adultery.
Separation is the most commonly used ground for divorce. This is because there is a higher burden for proof of adultery and cruelty.
Once one of these events has occurred, either spouse may apply for a divorce. Applying for divorce does not require the consent of the other spouse. However, speaking with your spouse prior to filing for divorce may prevent large legal disputes and create the possibility of an uncontested divorce.
To learn more about the uncontested divorce process, read our article here.
Three Reasons Why a Judge May Not Grant a Divorce
- A child is not being properly financially supported: According to section 11(1)(b) of the Divorce Act, a judge must be satisfied “that reasonable arrangements have been made for the support of any children of the marriage, having regard to the applicable guidelines” before granting a divorce.
- At-Fault Divorce: This is where one spouse claims the breakdown of the relationship is the other spouse’s fault for reasons such as cruelty or adultery. It is important to know that you need enough evidence to claim these allegations, and these allegations will be adjudicated at a trial.
- Using Your Divorce to Your Advantage: Fraud is one of the most uncommon reasons for your divorce to be denied. However, if a judge thinks you and your spouse are conspiring to obtain a divorce for your advantage, the divorce may be rejected.
To prevent a judge from not granting your divorce, it is important to consult with a lawyer prior to starting the divorce process to ensure you are meeting all of your requirements. An experienced family lawyer will help you understand all aspects of the divorce process and follow proper procedures.
What can you do if you are not granted a divorce by a judge?
It can be upsetting not to receive the outcome you want in legal proceedings. However, if you are not granted a divorce, there are some steps you can take.
- Understand the court decision: it is important to understand why the divorce was not granted to determine your next steps.
- Look for a resolution: if there were procedural errors, you may be able to reapply for a divorce.
- Seek legal advice: it is important to work with an experienced and trusted family lawyer. Check out our free guide to prepare for your first consultation.
- Alternatives: if a divorce is not possible, you may be able to explore a separation agreement.
Conclusion
Thinking of getting a divorce, but dealing with a spouse that is not willing to cooperate? If this is you, feel free to call our office today to book a free 30-minute consultation.
Although you might feel like you don’t need a lawyer for your divorce, it’s best to connect with a one to ensure that you aren’t subject to any legal implications if a spouse does not sign divorce papers.
This blog is made available by the law firm publisher, Epstein & Associates, for educational purposes. It provides general information and a general understanding of the law but does not provide specific legal advice. Any specific questions about your legal concerns please contact us now and speak to an expert today.