Today, let’s talk about a common theme I hear from many clients: “We’re separating because he/she cheated on me” “They did X, Y, and X, and I can’t take it anymore” “It’s their fault the marriage is over.”
Such statements are usually followed by the question “Does it matter that my spouse was responsible for our marriage breaking down?”
Fortunately, (or unfortunately depending on your perspective) Canada has a “no fault” divorce regime. This means that, when determining the parties’ legal rights and obligations relating to the children, child or spousal support, and property division, the “fault” or blameworthiness of a spouse in the marriage’s breakdown is generally not a factor taken into consideration.
Even if one spouse is more responsible for the end of the marriage, Canadian family law takes an objective approach to dealing with the issues arising from the divorce. The family legal system will not examine the reasons motivating the separation, nor will it punish a spouse for their role in the marriage’s breakdown.
Generally, the only area of family law where a spouse’s culpability in the relationship’s end may come into play is to establish a ground for divorce. Per the Divorce Act, to be eligible for a divorce, the party requesting a divorce must establish a breakdown of marriage. There are three grounds under the Divorce Act to prove a breakdown of marriage.
The most common ground is that the parties have lived “separate and apart” for at least one year. To prove this ground, the parties simply need to demonstrate that they have been living “separately” for one full year. This requirement can be satisfied even if the parties continue living together in the matrimonial home so long as they maintain “separate lives” and are not living as spouses.
The other two grounds for divorce are “adultery” and “physical or mental cruelty”. The main difference between claiming one of these two grounds versus “living separate and apart for one year” is that the former two options have the possibility of obtaining a Divorce Order in less than a year. Claiming a divorce because of adultery or cruelty offers no other advantage as, under a no-fault regime, the reason for separation has no impact on the determination of the parties’ rights or obligations.
The party claiming divorce on these two “fault” grounds would have to establish evidence proving adultery or cruelty, which can be unnecessarily complicated and costly.
Furthermore, given the current backlog in the court system, having to establish evidence proving adultery or cruelty along with addressing all other divorce-related issues in your separation may delay the resolution of your matter. For most people, it is far more efficient to simply go the route of living separate and apart.
If you would like further information about the grounds for divorce and / or obtaining a divorce order, please check out the other helpful videos and articles on our website.