With the first two weeks of January, following the Christmas and New Year holidays statistically the most common time for couples to file divorce proceedings, parties will inevitably want to know the quickest and most cost-effective route to obtaining a divorce. While there are routes which may aim speed up the process; unfortunately obtaining a divorce in Ontario tends not to be a speedy process.
In order to obtain a divorce under the Divorce Act you must show that your marriage has broken down. You can obtain a fault or non-fault divorce.
Non-Fault Divorce
- You and your partner have lived apart for one continuous year and consider your marriage to have ended. This still applies if you live in the same property, however you must be living separate lives i.e. not file taxes together, not sleep in the same bed, not attend social occasions together and not be supporting each other as you did as a couple.
If you and your spouse reconcile you do not always have to restart the one continuous year clock; you would only have to restart the clock if you reconciled for ninety days or several period which total over ninety days.
Fault Divorce
- Your spouse has committed adultery.
- Your spouse has committed cruelty either physically and or mentally and you are no longer able to live together.
Although these fault grounds can permit a quicker grant of divorce than the one-year time period of a non-fault divorce, in order to obtain a divorce on either of these grounds, you must be able to prove the adultery or cruelty against you. For example, this could be shown through a private investigator, medical records, police records and witness statements, which can often extend the time period beyond that of a non-fault divorce, and inevitably increase costs. Many parties chose to proceed with a fault divorce on a principled basis, while recognizing the potential for a longer wait for the divorce to be granted.
It is important to remember that Canadian courts operate a ‘no fault’ approach to divorce which means that generally, (although there are exceptions), the adultery or cruelty simply operates as a ground of divorce and does not impact any obligations or rights for a party. A divorce granted on the grounds of adultery or cruelty will not impact any custody, access, support or property division claims.
If both parties agree to the divorce, they can file a joint Application for divorce. However, if you and your spouse do not agree on the grounds of divorce, one spouse may file an Answer to your Application contesting the grounds of divorce.
Should you have any questions or wish to speak with an experienced family law lawyer, please contact us to arrange an initial consultation.
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