If one spouse wants to get a divorce but the other does not, this means that the marriage has broken down. In which case, the partner who wants to divorce may be able to get the divorce without the consent of the other. However, there are certain circumstances under which a person is able to obtain a divorce without the consent of the other partner.
If you want to get a divorce, but your partner does not consent, you are still able to get a divorce under certain circumstances. You would have to prove the breakdown of the marriage, such as proving adultery or physical or mental cruelty, for example. If you proved this, then would be granted a divorce when the court is able to hear your application. However, if you file for divorce and are also the one who committed adultery or cruelty causing the breakdown of the marriage, then you and your partner must stay separated for at least a year prior to applying for a divorce. This is because you cannot use your own omissions as the reasons for the divorce.
Also, if you are the one filing for the divorce, but you do not know the whereabouts of your partner, you are still able to obtain the divorce. However, you are first required to make every effort to find your partner. If you cannot locate your partner, then you are able to apply to a judge asking for an order for substituted service, which is a court order describing what you must do to ensure that your spouse is aware of the filing of the divorce. Before the judge will grant you a divorce, the judge must know that you have attempted everything possible to find your partner. If you have made every effort to find your partner, then the divorce is granted.
Collaborative Family Law is a form of dispute resolution built on the honesty, integrity, and respect of the couple who are divorcing. This type of dispute resolution requires that the couple work collaboratively together, with their lawyers and perhaps a third party, in order to reach a sufficient resolution regarding the breakdown of their marriage. The parties are also required to agree that they will not go to court to resolve their issues, as not going to court allows them to be as honest with each other as possible.
This method of dispute resolution is a client driven method, in which it must be fully consensual by both parties, as well as the couple decides which issues they will discuss and they make the decisions, rather than the decisions being made for them. The lawyers who are present at the meetings provide advice and encouragement only, as the couple plays the primary role in the resolutions.
During the proceedings, the couple must be absolutely truthful and honest as the process could potentially fail if these requirements are not met. If this happens, the party members must look elsewhere for representation as their collaborative family law providers are prohibited from working on the case file again. Collaborative family law provides a more rapid solution for couples who are separating or divorcing, as well as more efficient and effective solutions to the issues which need to be solved.
Arbitration is a method of alternative dispute resolution in which a third-party, the arbitrator, is granted the ability to make final and legally binding decisions relating to issues within the dissolution of a marriage or common law relationship. Arbitration generally deals with the issues of child custody and access, division of property and equalizing payments, and child and/or spousal support. The issue of a final divorce order is the only matter which cannot be arbitrated. As Arbitrators cannot grant a divorce or annul a marriage, they also cannot change official family status.
If arbitration is the method agreed upon by each spouse, the spouses would then draft and sign an arbitration agreement outlining the conditions surrounding the arbitration, including who will arbitrate, where and when the arbitration will take place, and the issues which will be arbitrated, as well as it outlines that the spouses waive their rights to go to court. The arbitration agreement ensures that any and all issues, no matter how insignificant they may seem, are outlined and may be arbitrated, in order to avoid future disputes. As arbitrators are legally only permitted to make decisions on the issues included within the agreement, any issues which were not outlined in the agreement and were arbitrated will be disregarded. Arbitration is a legally binding and efficient solution for dealing with the issues arising from the breakdown of a marriage.
The two main types of divorce include Uncontested divorce and Contested divorce. Uncontested divorce occurs when one spouse files an application for divorce and the other spouse does not file an answer. This fundamentally states that on failing to file an answer, the spouse does not agree with the divorce. In an uncontested divorce, the spouses agree on the issues raised from the divorce, in which the court officials will typically process the divorce in ways which do not require the parties to go to court. For an uncontested divorce to be valid, the parties must have resolved all issues such as child custody and access, and child and spousal support through a separation agreement or court order, as well as the divorce must entail the breakdown of the marriage based on one year separation, after which the judge will grant the divorce.
Contested divorce occurs when the spouses disagree on some or all of the issues within the divorce. Most commonly, these disagreements include child and spousal support, division of the financial gains of the marriage, and child visitation schedules. Within this type of divorce, both parties must set out their positions and views on the issues in dispute. Contested divorces may be settled a number of ways, such as outside of court, through negotiation, or through formal divorce procedures. Uncontested divorces are generally faster and more efficient in terms of less stress and cost; whereas contested divorce is generally longer. However, contested divorce is more common, specifically among couples who have been married longer, have children, or have a large amount of property to deal with.
One of the main concerns during separation or divorce is the children. Divorce and separation can be a traumatic and devastating time for children, in which their lives are changing, and they may not know how to cope. Every child will react differently to the divorce or separation of their parents. In order to protect the child and help them to avoid any problems which may arise from the divorce or separation, parents must ensure that their child does not get trapped in the middle of the divorce, in which they must attempt to continue a close relationship with the child or children, as well as maintain communication.
There are many effects, both short term and long term, which divorce may have on the children present. Short term effects include the child feeling guilty or responsible when they do not understand, becoming aggressive or violent to everyone around them, becoming emotionally needy from fear of being abandoned, becoming depressed, feeling angry and resentful, losing the ability to concentrate, intense feelings of grief or loss, or the occurrence or re-occurrence of bedwetting.
Typically the effects of divorce will fade from your child once they have adjusted to the new situation. However, there are some long term effects on children from divorce, which include the children being less likely to be educated, experiencing poverty or socio-economic disadvantages, exhibiting anti-social and behavioural problems, suffering from drug or alcohol problems, getting married or cohabitating earlier, becoming teenage parents, or experiencing a separation or divorce for themselves.
In some cases, however, there can be some positive effects. These include situations in which the parent’s inability to be together created a hostile environment in which the child was regularly exposed, as well as situations involving abuse of any sort. In cases such as these, divorce or separation would bring the child out of that hostile environment into a more caring, supportive, and stable situation.
If a relationship between two partners ends, one partner may be entitled to spousal support. Generally, if one partner is in a better financial state than the other, they are required to pay spousal support. This allows the partner who is in need of support to maintain the standard of living with which they are accustomed to, have access to finances while they search for employment, and pay tuition fees for education or training in order to become self-sufficient. Entitlement to spousal support is based on the obligations of each spouse to support themselves and each other if they have the means to do so.
If children are present during divorce, child support takes precedent over spousal support. This ensures that parents continue to provide for their children as it is the child’s legal right to be supported by both parents. Generally the parent who is granted primary custody of the child, the custodial parent, is the one handling the expenses involved with raising the child. Non-custodial parents are legally required to pay the child support if their children are under the age of majority, or cannot live independently due to factors such as illness, disability, and education fees.
Both spousal support and child support are established by the Divorce Act and the Family Law Act. In terms of spousal support, the Divorce Act pertains to couples who were previously married, and the Family Law Act applies to common law couples. In terms of child support, the Divorce Act applies to legally married couples in the process of divorce or who are already divorced, and the Family Law Act pertains to couples who are legally married and are becoming separated rather than divorced. Also, spousal support may be deducted on the payer’s income tax return and is considered taxable to the recipient spouse, where as child support is not. Also, spousal support has no automatic entitlement once a person becomes a “spouse”.
Common law relationships occur when two individuals live together in a “marriage-like”, or conjugal, relationship. Common law separation varies from that of divorce in that the laws governing married couples do not apply to cohabitating couples. It is advised to enter a cohabitation agreement when in a common law relationship, as this allows parties to agree on division of property, support, and other matters which may be disputed if the parties end the relationship, as well as it allows the couple to determine their rights within separation before they cohabitate.
Common law relationships end when the couple ceases to live together; however some rights and responsibilities may persist. When dealing with property during a cohabitation separation, each party is able to keep what belongs to them, as well as each party is responsible for their own debts. If there is an asset in both names, then the value of that asset is divided equally between each party, and the couple decides how to divide it. If the event results in an unfair division of the asset, then the partner should make a claim filing for unjust enrichment, in which if proven, the party who was unjustly enriched is required to make reasonable restitution of the asset. Further, when handling child custody, access, and support, the same laws apply for common law couples as with married couples, in that common law individuals must also pay child support upon separation if required, and they are able to receive some form of child custody.
Further issues that are dealt with upon a common law or cohabitation separation include but are not limited to paying spousal support if the couple has cohabitated for three years or are in a relationship of some permanence and have children, and a time limit in certain provinces to apply for spousal support. Assets that a partner may acquire or not upon a cohabitation separation include receiving dependent’s relief on death of partner, not receiving equalization payment of death, and not receiving possession of the matrimonial home.
Individuals can be granted divorce in Canada no matter where the marriage took place, or what the citizenship of the individual is. However, the individual may be asked to prove that their spouses’ home address or their own home address is in Canada and the province within which they have applied for divorce. Further, if the individual or partners who are applying for divorce often travel out of the province within which they have applied for divorce, they will still be granted divorce as long as their permanent home is in that province.
Individuals can apply for and are granted divorce as long as the couple was legally married in Canada or another country, the couple intend to separate permanently from their spouse with the belief that there is no chance of reuniting or one spouse has left the other with no belief of reuniting, and both or either one of the partners have been a resident in Canada for at least one year prior to applying for their divorce.
Following the granting of a divorce, an individual has 31 days to appeal. Once the 31 days have passed the divorce is final, in which it cannot be revoked by anyone, including the court. However, certain terms of divorce such as child custody, access, support, and spousal support are never final. These terms are sometimes changed depending on the individual’s life and changes in circumstances.
The first step in changing these terms is for the spouse who requires the change to reach out to their former spouse and attempt to make an agreement. If this is achieved, the agreement and change should be put into writing, unless your separation agreement includes a section outlining how to make changes. Each spouse should then acquire legal advice, after which they should date and sign the agreement, as well as have an adult witness the signing to show that the agreement was legally signed. However, if the former partners cannot reach an agreement, they should apply to the court to adjust the issue at hand, whether it is child custody or access, or child or spousal support. The case may be directed to family law mediation, however if this is unsuccessful, then the judge will decide whether to grant the changes requested.
Family Law Mediation is a type of dispute resolution based on the cooperation and maintenance of a friendly relationship between separating or divorcing partners. This method consists of a neutral third party who is present during meetings, and assists the parties in coming to an agreement of all issues pertaining to the dissolution of their relationship. There are two types of family law mediation, including closed mediation and open mediation. Closed mediation is completely confidential, as nothing is disclosed. Open mediation does not entail any confidentiality and does not prohibit the disclosure of the proceedings or decisions within the mediation.
This form of dispute resolution is client based, in that the parties control the entire process with only the help of a neutral third party. The spouses will be required to co-operate with and listen to each other, while regarding the other’s opinions and needs. If the parties are having difficulties coming to a final decision of an issue, or are having disagreements, the mediator cannot impose a settlement. The mediator does not act as a lawyer, as well as they do not advise the parties of their legal rights or obligations. The mediator simply acts as a guide within the proceedings, attempting to maintain the communication and consideration of the important issues between the parties.
It is strongly advised that the parties consult with lawyers prior to participating in mediation, as the process can only be fully secured if it is informed, as well as having lawyers present helps to protect the rights and interests of each party, which may result in a more efficient resolution of the issues. Mediation ensures that all decisions made within the proceedings are made in the best interest of all parties, ensuring a fair and peaceful resolution.