Divorce is rarely something any couple wants to endure but nevertheless, divorce can be all too common. In fact, according to Statistics Canada, 38% (4 out of 10) of first-time marriages end in divorce. It may come as no surprise then that many married couples may find themselves facing divorce at one point or another in their lives.
For many experiencing this for the first time, plenty of questions may arise in terms of how divorce works, what to expect, and how such a decision could potentially impact your life. One of the most common questions for those contemplating or seeking a divorce is the question of whether or not divorce can be denied in Canada.
But before we get to that, it’s important to remember that in Canada you’ll need to get a divorce order to be able to legally end your marriage and thus, be eligible to legally remarry should you choose to do so in the future. You can begin this process in British Columbia by submitting the required forms to the BC Supreme Court.
In order to be eligible for a divorce under Canadian law, the Divorce Act states that you must prove a breakdown in your marriage and this is measured in one of three ways:
- Showing that you and your spouse have been living separate and apart for at least one year
- Showing that your spouse committed adultery
- Showing that your spouse treated you with physical or mental cruelty, which has made continuing to live together intolerable
Remember that you will only need to prove one of these requirements to be eligible for divorce in BC. Usually, in most divorce cases, couples will simply wait out the year and then proceed with the divorce.
In addition to these eligibility requirements, you will also need to meet the following criteria:
- You or your spouse must have been living in BC for a period of 12 months or more and
- You or your spouse must be living in BC when you apply
What are the types of divorce in BC Canada?
There are two types of divorce in British Columbia:
An uncontested divorce (often referred to as undefended divorce or desk-order divorce) is where both spouses agree on the terms of the divorce such as parenting, support, and property division. Most divorces (around 80%) are uncontested.
A contested divorce (also referred to as a defended divorce), is when both spouses may want a divorce but they cannot agree on issues pertaining to things like parenting, support, or the division of property or debt. If this remains unresolved, a judge will typically decide the outcome of these issues.
So can divorce be denied in BC Canada?
The short answer is yes.
It’s important to keep in mind, however, that divorce will typically only be denied in a very defined set of circumstances. They are as follows:
- According to the Divorce Act, the court must be satisfied that there is no possibility of reconciliation before granting a divorce. If the court believes there may be a chance, the court may put your case on hold or recommend counselling, to give you a chance to get back together
- If there any children involved, the Divorce Act mandates that there be adequate provision for them in place before a divorce will be granted. A divorce will not be granted until the court is satisfied that reasonable support arrangements have been made for any children involved
- A judge determines that there has been ‘collusion’, which is when both parties have acted together to deceive the court, in which case, the divorce may not be granted
Most of the time, divorce orders are generally granted to eligible spouses seeking a divorce so long as they have made the proper arrangements.
Are you facing a divorce or separation? Only lawyers who practice family law have the nuanced expertise to provide critical insights that can often be overlooked. If you would like to know more information or what options may be available to you, reach out to our team of expert family lawyers who can help guide you through this process.