Legal Affairs: Divorce is not a matter of fault

…in practical terms it doesn’t matter whether or not one spouse wronged the other spouse.

In Canada, we have what is commonly referred to as a “no fault” divorce system.

Although there are still two “fault based” grounds for divorce available, in practical terms it doesn’t matter whether or not one spouse wronged the other spouse.

Under the Divorce Act, a spouse applying for a divorce must show the court that there has been a “breakdown of the marriage.”

A breakdown of the marriage can either be established by the parties living separate and apart for one year, or if the spouse against who the divorce is sought has either committed adultery or has committed physical or emotional cruelty such that continued cohabitation has become intolerable.

Many separating spouses may feel that they have been subjected to cruelty or have learned that their spouse has cheated on them and want their ex to pay for it.

While both scenarios are devastating, both can be quite hard to prove in court.

The court must be satisfied of the cruelty or adultery based on a preponderance of probability.

The innocent spouse would need affidavit evidence in which one of the adulterers admits the transgression, or to provide specific and compelling evidence of cruelty, corroborated by a third party.

Pursuing these avenues will invariably take longer and incur higher legal fees and the only advantage of doing so is that in theory the divorce order may be granted prior to the expiry of one year.

Therefore I often tell my clients, “It doesn’t matter whose fault it is!”

Even when infidelity or cruelty has occurred, the vast majority of divorces in Canada proceed on the grounds of living separate and apart.

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