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Hello everyone, my name is Andrew Feldstein and I am the founding/managing partner of Feldstein Family Law Group. Today I will be discussing the significance of divorcing your former spouse and the legal implications that flow from a Divorce Order.
The Divorce Act provides that there is only one ground for divorce in Canada – “Marriage Breakdown”. Marriage breakdown can be proven in two ways:
- Parties have lived separate and apart for one year; or
- The other spouse is guilty of adultery or cruelty.
In almost every case, marriage breakdown is demonstrated by the parties living separate and apart for one year, despite the presence of infidelity or cruelty. The rationale for proceeding as such is that it is more time and cost effective to pursue divorce on grounds of living separate and apart for one year.
There are several consequences that flow from a Divorce Order, both from a legal and personal perspective. First, once a Divorce Order is granted a former spouse may lose any benefits that they were receiving through their former spouse’s employer.
Second, upon divorce, a spouse may no longer commence an application for exclusive possession of the matrimonial home, pursuant to section 24 of the Family Law Act. Further, no Court may order exclusive possession of the matrimonial home once divorced.
Third, section 7(3) of the Family Law Act sets out limitation periods that apply to equalization claims. Any claims you may have to an equalization of Net Family Property under the Family Law Act will be barred by the passage of time if you do not start court proceedings within six (6) years of your separation from your spouse, or within two (2) years after a divorce has been ordered, or within six (6) months after the first spouse’s death, whichever occurs first. As such, the granting of a Divorce Order may significantly reduce the amount of time you may have to commence an action regarding equalization.
Lastly, and I learned this after I separated from my spouse, many individuals perceive separation and divorce quite differently. While some view separation as a temporary state, divorce, on the other hand, is final. As such, when you begin dating again and the topic of past relationships is broached, you may receive a different response from the other person depending on whether you tell them you are currently separated or now divorced.