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Divorce - General

People seeking a divorce are simply asking a court to dissolve their marriage. This means of course that you must have had a valid marriage to begin with. Not to worry. Most people married in Canada and the United States have a valid marriage but people married in a foreign jurisdiction should seek advice from a matrimonial lawyer on this issue before proceeding.

When a court considers a request or 'Petition' for a divorce it often deals with related matters or 'corollary relief'. This may include such issues as custody, access, child support, spousal support ('alimony') and division of matrimonial assets and matrimonial debt.

The only ground for divorce in Canada is 'marriage breakdown'.

The circumstances of the marriage breakdown, simply put, can be based upon an intentional one year separation, adultery, or intolerable mental or physical cruelty. In practice, most divorces in Canada are based on one year separation. This means that the parties must have lived separate and apart for one year (though not always in separate physical residences) and at least one of the parties must have intended to live separate and apart because of problems in the marriage.

Some of the corollary matters can be complicated depending on particular facts. Many people commence there divorce application before the one year is finished even though the court will not normally grant the divorce until the one year has expired.

Before a divorce can be granted there are four matters that must be dealt with.

1. There must be adequate provision made with respect to child support. This invariably involves amounts in accordance with the Child Support Guidelines.

2. Parties must remove any religious barriers that they have control over.

3. Neither spouse must be unduly prejudiced by the divorce.

4. The divorce must not be for some improper reason, say to push a fraud.