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Can I contest the divorce because of this outstanding issue?

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Anonymous Asked:

After 30 years of marriage my husband left and met someone on line in Oklahoma - she too is divorced and has an adopted child. Our assets have been dealt with in the separation agreement. He served me divorce papers and I have 30 days to respond our year of separation will be August 15. I believe he plans on marrying this women. How long does it take to get the final divorce decree? Can he marry her here in Canada and make her a canadian citizen? I would love to contest this on grounds of adultery but I know the laws have changed. He has cause me and our children so much pain that I just want to get back at him. The only item we could not settle on during our separation agreement was a joint cemetery plot that we have. I offered to pay him out the exact cost that the cemetery would give us and he wanted triple the value- Can I contest the divorce because of this outstanding issue?

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Jennifer M. Long, B.A. J.D.
5 years ago

In Ontario, our system of no-fault divorce means that your husband can obtain a divorce even if you are not in agreement, and regardless of whether adultery was an issue. Further, you would not use adultery as a ground to contest the divorce. Rather,it ​is ​one of the few grounds to try to obtain a divorce by eliminating the requirement of the one year period of separation before you can obtain a divorce order.

You can file an answer to the divorce application, but as it appears that all issues (aside from the cemetery plots) have been dealt with by way of a separation agreement, doing so may not be ​considered ​reasonable. ​ If a court finds you are not being reasonable, then you could be subject to your husband's legal costs - but it all depends on the circumstances. Also, depending on the terms of your separation agreement, there ​may be a clause that allows either party to proceed with an uncontested divorce​.​ We would need to see the separation agreement and receive more detail on why the cemetery plots were ​not dealt with at the time of the separation agreement, the value of the plots etc.

If you do not respond to the divorce application, once the 30 days have passed, the divorce can proceed on an uncontested basis and a divorce order will be made. The amount of time this takes will depend on how busy the courts are, as a judge will need to review the material and issue the divorce order.

It could take up to a couple of months for a divorce order to be signed, depending on the court and time of year​. Once the divorce order i​s signed, the divorce takes effect 30 days from the date of the divorce order, and it is only after those 30 days have passed that either party can obtain a certificate of divorce. Your husband will need a certificate of divorce if he wishes to remarry. ​

This is not to say that you cannot file an Answer to deal with the cemetery plots - as they may have considerable value or there may be other issues that have to be sor​ted but it will depend on the terms of the separation agreement and the exact circumstances. I urge you to speak to a lawyer and provide the full details to get advice.

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