We know how difficult it can be to navigate a divorce. This blog is intended to help you gain a better understanding of your rights through a divorce, and to know a little bit more about the process.
What is Divorce?
Divorce is the legal termination of a marriage by a court. It is the formal end of the relationship and both parties are no longer bound to each other as spouses. During divorce proceedings, both parties will resolve:
- Division of assets and debt
- Child Custody and Support
- Spousal Support
Divorce laws can vary by province, please contact your local family lawyers for assistance navigating this process.
What are Divorce Laws?
Divorce laws govern how a marriage can be legally terminated. These laws also outline the rights and responsibilities of each party during the divorce procedures and after. The Divorce Act is a federal law, but the procedures for getting a divorce are under provincial jurisdiction.
What is the Divorce Act?
The Divorce Act is the primary family law in Canada and it only applies to couples who are applying for divorce. The act sets out rules for the following:
- Grounds for a divorce
- Child support after a divorce
- Spousal support after a divorce
- Custody agreements after a divorce
The Key Elements of Divorce Law
- Grounds for Divorce: There are two reasons for a divorce to occur. No-Fault in which case neither spouse has to prove any wrongdoing. The second is fault-based, where one party did something that merits a divorce.
- Division of Property: Courts consider many factors to divide assets equitably and not equally.
- Spousal Support: Divorce laws are in place to determine if a spouse is entitled to spousal support after the divorce.
- Child Custody and Support
- Divorce Procedure: The laws are in place to guide the entire divorce procedure.
- Prenuptial and Postnuptial Agreements
- Annulment: In some cases, a marriage can be completely voided.
- Mediation or Arbitration: Some divorce laws encourage families to seek alternative dispute resolutions that exist outside of court. These resolutions can lead to a more amicable cost-effective outcome.
- Waiting Periods: You may have to wait before getting a divorce finalized. The time frame can range from weeks to months.
Is There Any Eligibility Criteria for a Divorce?
Yes, as stated in the divorce act, you can file for divorce if your marriage has broken down. You can show that your marriage has broken down if any one of the three following scenarios has happened to you:
- You have been living separately for one year or more
- Your spouse has physically or mentally abused you
- Your spouse has committed adultery
How Do I Start the Divorce Process?
The process of starting a divorce is dependent on the province or the territory. They each have their own forms that must be filled out and filed with the court. You can file the paperwork yourself but we would always recommend contacting your family lawyer. This way you can ensure all the procedures and paperwork are done correctly, and they can explain how the divorce laws apply to your situation directly.
Understanding your Rights
The divorce laws in Ontario provide a “no-fault” approach. This means that even if one party is to blame or is at fault for the divorce, it does not affect entitlement to their rights. The following are your rights in a divorce:
- Division of Property: The Ontario Government has a page that explains how property is divided in more detail.
- Spousal Support: Depending on the circumstances you may be entitled to support from your ex-partner.
- Child Custody and Support: Both parents are obligated to financially support any children they have together. The custody of the child is also depending on their best interests.
- Freedom to Remarry: After the divorce is finalized you are free to engage in other consenting relationships.
The Roadmap to the Divorce Process
The divorce process can be broken down into 5 separate steps.
- Determining the Ground: Does your situation meet the legal requirements?
- File your Application: You or your lawyer will submit the application to the court.
- Serving your Spouse: Your partner must receive the court documents
- Resolve Rights and Issues: This can be completed through mediation, through negotiation or in court.
- Decision: After the court reviews your case, it will grant the divorce and settle the rights and issues.
Is a Divorce Lawyer Really Necessary?
According to divorce laws, a lawyer is not legally required when getting a divorce. However, a divorce can be extremely difficult to navigate and is full of complex issues. A lawyer will ensure that your rights are protected and you get what you deserve from the divorce. Whether it is an uncontested divorce or not, seeking legal advice or help is very valuable.
Divorce can be a straining experience mentally. At Epstein Lawyers we will do everything that we can to navigate this process as smoothly as possible for you. Please reach out if you have any questions or if you are starting the divorce process.