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A Divorce is granted by a court on the ground that there has been a breakdown of the marriage.
In Canada, there are three grounds for a breakdown of a marriage. One, the spouses have been living separate and apart for at least one year before the divorce will be granted. Two, the spouse against whom the divorce is being sought treated the other spouse with physical or mental cruelty. Three, the spouse against whom the divorce is being sought committed adultery.
Adultery is when one spouse in the marriage has an affair that the other spouse does not condone. It is important to understand that suspicion is not enough to prove adultery. A judge must infer from the evidence provided that the adultery, in fact, occurred.
If the spouse who allegedly committed the adultery does not file a response and/or does not contest the adultery claim, then a judge may infer that he or she committed adultery because he or she did not state otherwise.
However, if the spouse who allegedly committed the adultery contests the claim, then the other spouse will have to provide evidence to the court to prove this ground to obtaining a Divorce Order.
What difference does it make if you file a claim for a divorce based on the ground of adultery, cruelty or one year living separate and apart?
The most significant difference is that if you claim a breakdown in your marriage based on the ground of living separate and apart for one year then you must wait the requisite one year before you can apply for a divorce order, and then an additional 31 days for the divorce order to take effect once granted. If you apply for a divorce based on the ground of adultery or cruelty then you can apply for a divorce immediately after your separation date, and then you only have to wait the additional 31 days for the divorce order to take effect once granted.
In Canada, most people choose to file an Application for Divorce under the ground of living separate and apart for one year.
Before applying for a divorce based on the ground of adultery, I like to explain to any clients who wish to do so, that not only may it be difficult to prove, unless you have concrete evidence, it may also have a negative effect on the divorce proceeding itself and the process to your resolution. What I mean by this is that the divorce proceedings may begin to solely focus on the issue of adultery instead of the real issues that must be resolved. These important and central issues may include the children of the marriage with regards to custody and access, or child and spousal support along with division of property. Therefore, when a spouse claims a breakdown of the marriage and a divorce based on the ground of adultery the spouses may thereafter get caught up in a blame game rather than focusing their attention on a resolution of the practical issues at hand.
If you would like to learn more about divorce or other family law issues, you can visit our website. If you would like legal advice about your own situation please call us at (905) 581-7222 for a consultation.
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