Gemma Arterton, Bond girl from the film Quantum of Solace and princess
from Prince of Persia, was finally granted a divorce from her now former
husband, Stefano Catelli, after more than two years of waiting.
Arterton and Catelli were married in 2010 by way of an intimate ceremony
held in a small Spanish village in Andalucia. It was not long thereafter
that the couple’s romantic adventure wound down and they eventually
began living separate and apart.
Despite having separated in November of 2012, the couple remained legally
married until August 21st, 2015, when the Central Family Court in High
Holborn (London, England) was finally able to grant their divorce. Even
though there were no contentious issues that could delay the divorce between
Ms. Arterton and Mr. Catelli and they were leading separate lives, the
couple was not eligible to obtain a divorce under English law until they
could establish the legal grounds for the divorce.
Had this same set of facts arisen before a Canadian court, this process
could have been much shorter.
Important Differences between Divorce Laws in Canada and England
Much like Canadian divorce law, English divorce law requires Applicants
to establish grounds for obtaining a divorce. In Canada, the sole ground
for divorce is breakdown of the marriage. Similarly in England, spouses
can obtain a divorce on the ground that their marriage has irretrievably
broken down.
Section 8 of Canada’s
Divorce Act reads as follows:
8.(1) A court of competent jurisdiction may, on application by either or
both spouses, grant a divorce to the spouse or spouses on the ground that
there has been a
breakdown of their marriage.
Section 1 of England’s
UK Statute 1973 c. 18 Pt. reads as follows:
1. (1) Subject to section 3 below, a petition for divorce may be presented
to the court by either party to a marriage on the ground that the
marriage has broken down irretrievably.
One of the differences between Canadian and English divorce law lies in
the requirements that must be met in order to establish the requisite
breakdown in the marriage. In Canada, there is a one-year separation period
required before a divorce can be granted and the Respondent need not consent
to the separation, whereas English law requires a two-year separation
even if with the Respondent’s consent and a five-year separation if
the Respondent does not consent.
Section 8.(2) of Canada’s
Divorce Act states that the
breakdown of a marriage is only established if one of the following is proven:
(a) the spouses have lived
separate and apart for at least one year immediately preceding the determination of the divorce proceeding and
were living separate and apart at the commencement of the proceeding; or(b) the spouse against whom the divorce proceeding is brought has, since
celebration of the marriage,(i) committed adultery, or
(ii) treated the other spouse with physical or mental cruelty of such a
kind as to render intolerable the continued cohabitation of the spouses.
Section 8.(3) of Canada’s
Divorce Act further clarifies that, for the purposes of section 8.(2)(a), the separation
period is determined based on the following:
(a) spouses shall be deemed to have lived separate and apart for any period
during which they lived apart and
either of them had the intention to live separate and apart from the other; and
Section 1.(2) of England’s
UK Statute 1973 c. 18 Pt. states that a marriage cannot be found to have broken down irretrievably
unless the petitioner satisfies the court of at least one of the following:
(a) that the respondent has committed adultery and the petitioner finds
it intolerable to live with the respondent;(b) that the respondent has behaved in such a way that the petitioner cannot
reasonably be expected to live with the respondent;(c) that the respondent has deserted the petitioner for a continuous period
of at least two years immediately preceding the presentation of the petition;(d) that the parties to the marriage have
lived apart for a continuous period of at least two years immediately preceding
the presentation of the petition (hereafter in this Act referred to as “two years’ separation”)
and the respondent consents to a decree being granted;(e) that the parties to the marriage have
lived apart for a continuous period of at least five years immediately
preceding the presentation of the petition (hereafter in this Act referred to as “five years’ separation”).
It is due to England’s two-year separation requirement that Ms. Arterton
had to wait so long to obtain her divorce. Thankfully for Ms. Arterton,
her former husband consented to the divorce and she was not subject to
the five-year separation requirement.
The important thing to note is that, if a similar case arose in Canada,
the Applicant would only be required to establish one year of separation
before becoming eligible for a divorce and the Respondent would not need
to agree to separate in order to begin counting that one-year separation
period. Separation can be a unilateral decision so long as at least one
of the parties takes steps to begin living separate and apart.
If Canadian law applied to Ms. Arterton’s matter, she could have been
eligible to obtain her divorce much earlier.