Divorce Before you file for divorce Q- What is divorce?
Divorce ends a marriage. The federal law governing divorce is called the Divorce Act. Only a Supreme Court Judge can grant a divorce. Q- What are the grounds for divorce?
The only ground for divorce in Canada is a breakdown of the marriage. A breakdown of the marriage can be proved in one of three ways: 1. You and your spouse have been separated for at least one year;
2. Your spouse committed adultery (willingly had sex with someone else during your marriage); or
3. Your spouse treated you with intolerable physical or mental cruelty. You cannot ask for a divorce based on your own adultery or cruelty, only your spouse's adultery or cruelty. Almost all divorces in Nova Scotia are granted based on one year's separation. Another requirement is that at the time the divorce is granted, one spouse must believe, and state under oath, that there is no possibility of reconciliation (getting back together). You should only consider using a do-it-yourself divorce kit only if you are seeking a divorce based on one year's separation or if your spouse has admitted adultery. If your spouse abused you in any way, you should speak to a lawyer about your divorce. Q- Can I sue my spouse for alienation of affection or for committing adultery?
Alienation of affection is an old-fashioned type of lawsuit that is no longer used very often, if at all. Most people focus on settling the major issues that arise out of their separation, such as custody, access, support, and division of property. While adultery has enormous emotional consequences and may be the reason for the separation or divorce, legally, it is of limited relevance. Courts do not consider adultery when deciding how to divide property between spouses. The Divorce Act prevents judges from considering "misconduct in relation to the marriage" when deciding spousal support. Similarly, the Divorce Act requires that courts only consider conduct relevant to a spouse's ability to act as a parent when deciding custody and access. Generally, courts do not consider adultery to be relevant to parenting. Q - My spouse admits to adultery. How does this affect our divorce?
Canada's divorce law allows spouses to divorce without waiting for one year's separation if one spouse committed adultery that was not condoned (forgiven) by the other spouse. The court will not grant an early divorce if the adultery was committed solely for the purpose of obtaining grounds for a speedy divorce. If you want to seek a divorce based on adultery, your spouse will need to provide an affidavit (a sworn, written statement) admitting to adultery during your marriage. In Nova Scotia, spouses must agree on custody, access, support, and division of property (or have a judge decide these issues) before a divorce can be granted. In most cases, this takes a year or more to sort out, and the spouses decide to request a divorce based on one year's separation even if one spouse committed adultery. Q- My spouse abused me. How does this affect our divorce?
Canada's divorce law allows spouses to divorce without waiting for one year's separation if one spouse treated the other spouse with intolerable physical or mental cruelty. If you want to seek a divorce based on intolerable cruelty, you will need to provide an affidavit (a sworn, written statement) explaining how your spouse was intolerably cruel to you. If your spouse abused you in any way, you should speak to a lawyer about your divorce. In Nova Scotia, spouses must agree on custody, access, support, and division of property (or have a judge decide these issues) before a divorce can be granted. In most cases, this takes a year or more to sort out, and the spouses decide to request a divorce based on one year's separation even if one spouse abused the other spouse. The most dangerous time for an abused woman is the first twelve months after separation. Statistics Canada reported in 2001 that almost half (49%) of women killed by their spouses are killed within two months of separation. Another 32% of murdered spouses are killed within 2-12 months after separation. Abused men do not face the same increased risk after separation. Less than 1% of abused women are killed by their spouses, but it is very difficult to know which women are at risk. In one study of women killed by their spouses, half the women did not think they were in serious danger before they were killed. If you are concerned about your safety, you should seek help from police and a women's shelter as soon as possible. Click here for more information about family violence.
Q- Can common law couples get a divorce?
Common law couples are not married. No amount of time living common law turns the common law relationship into a marriage. When common law couples separate, they need to work out many of the same issues as married couples, such as custody, access, support, and division of their property, but they do not need to divorce. Click here for information about common law relationships.
Q- Can Registered Domestic Partners get a divorce?
Registered domestic partners do not divorce. A registered domestic partnership ends automatically if: * one of the partners marries someone else;
* the partners file a Statement of Termination with Nova Scotia's Department of Vital Statistics;
* the partners sign a written separation agreement under the Maintenance and Custody Act (proof of the agreement is necessary to register the termination); or
* the partners are separated for more than one year (a sworn written statement by one partner is necessary to register the termination). When registered domestic partners separate, they need to work out many of the same issues as married couples, such as custody, access, support, and division of their property. Q- Can same-sex partners divorce in Nova Scotia?
Probably, yes. When these FAQs were prepared an Ontario Court had granted the first same-sex divorce, but no Nova Scotia court had granted a divorce to same-sex spouses. Same-sex marriage became legal across Canada in July 2005. Q- My religious or cultural beliefs do not permit me to divorce. What other options do I have?
You and your spouse may decide to separate without getting divorced. In this type of separation, the spouses settle all issues of custody, access, support, and division of their property and debts, and agree to live separately on a permanent basis. Usually, they have a written, signed separation agreement. The separation agreement can be registered with the court and enforced as a court order. However, neither spouse can remarry. Either spouse may later change his or her mind and apply for a divorce, even without the consent of the other spouse. In rare circumstances, you may qualify for an annulment of your marriage. Q- Can we get an annulment instead of a divorce?
Probably not. An annulment is a Court order saying that a marriage never existed. Annulments are rare. Generally, they are only granted if the marriage was invalid for some reason, such as where one spouse was already married to someone else, was too young to consent to marry, did not have the required mental state to consent to marry, or was forced to marry. An annulment can also be granted if one spouse is unable to have sex because of a physical or psychological problem that existed at the time of the wedding. If your marriage is annulled, you have the same rights as any other spouses to custody, access, support, and a division of property and debts. A legal annulment is not the same as a religious annulment that permits you to remarry within your church. If you want a religious annulment, contact your church. Q- Can my spouse divorce me without my consent?
Yes. Either spouse may obtain a divorce based on one year's separation even without the consent of the other spouse. If your spouse will not co-operate, it can take longer than one year to settle all of the issues and finalize the divorce. It will also likely be more expensive and require more work to complete. Q- How long do we have to be married before I can petition for divorce?
You must be separated to file a Petition or Application for Divorce. As long as you are separated, it can be done at any time, even after marriages as short as one day. However, unless there has been adultery or intolerable cruelty, a divorce will not be granted until you have been separated for one year. Q - I don't want to have sex with my spouse anymore but my spouse says I have to until our divorce is final. Is this true?
No. Everyone has the right to refuse sex, even with a spouse. You always have the right to refuse sex, even if you are not yet separated. Q- Is it okay for me to date after separation but before a divorce is granted?
Yes. Many people date and start new relationships during this period. Q- Can I go back to my unmarried name now, or do I have to wait until my divorce is final?
You can begin using your unmarried name (or a previous married name) at any time. You may need to show your birth certificate or previous marriage certificate to get new identification and change your name with businesses and government. You may also use your married and unmarried names together (i.e. Jane Smith-Doe) with or without a hyphen. Q- Do I need to hire a lawyer to get divorced?
It is possible to get a divorce in Nova Scotia without hiring a lawyer. But the more important question is: should you hire a lawyer? The answer to this question is yes. A divorce is a significant legal proceeding that will have a permanent impact on your life. It will determine your rights and obligations for many years to come. There are risks and problems that can arise when spouses do-it-themselves without lawyers. Here are some of the risks and problems you might encounter: * You may forget to deal with an important issue in their separation, such as entitlement to a pension, and cannot deal with it later unless you and your spouse agree;
* You or your spouse may get a large tax bill if you don't understand the tax consequences of your division of property or agreement on support;
* You or your children may receive inadequate support or no support at all;
* The court may refuse to grant your divorce if you have not complied with all of the requirements in the Divorce Act;
* If your agreement is unfair to your spouse, he or she may later apply to have it overturned; or
* Your agreement may be unfair to you. If the court refuses to overturn it, you will have to live with a bad bargain. At minimum, both spouses should get advice from a lawyer before signing any separation agreement or agreeing on terms to process an uncontested divorce. This is called getting independent legal advice. Your lawyer will review the agreement with you and make sure you understand what it means and how it will affect you. Your lawyer can explain your rights and obligations and may be able to give you an opinion as to whether the agreement is fair or not. Once you agree to the terms of a separation agreement or a divorce, it can be difficult or impossible to change the terms relating to your division of property and debts, or a release of spousal support, unless you and your spouse both agree to change the terms. Q- Why can't my spouse and I use the same lawyer?
It is a conflict of interest for a lawyer to act for you and your spouse in a divorce proceeding, because your interests are not the same. While you may share an interest in ending your marriage as fairly and respectfully as possible, this is not sufficient to permit one lawyer to act for both of you. Each spouse needs his or her own lawyer. Q- Where can I find a lawyer?
To find a lawyer, you can: - ask a friend or family member for a referral;
- contact the Legal Information Society's Lawyer Referral Service at (902) 455-3135 or toll free at 1 (800) 665-9779;
- look in your Yellow Pages under Lawyers; or
- call a law office or
- call a women's centre and ask for a referral.
If you do not work outside the home or have a low income, you may qualify for legal aid. Contact your local legal aid office for an application. Check your local directory for the addresses and telephone numbers of legal aid offices across Nova Scotia or contact the Office of the Executive Director.
Q- I can't afford a lawyer. What other options do I have?
You may qualify for legal aid. If you do not work outside the home or have a low income, you may qualify for legal aid. Contact your local legal aid office for an application. Check your local directory for the addresses and telephone numbers of legal aid offices across Nova Scotia or contact the Office of the Executive Director. Your lawyer may accept alternate billing arrangements. If you have no extra money, but you and your spouse own property, such as a home, investments, or RRSPs, some lawyers may agree to be paid at the end of your case, when you receive your share of the family property. The Legal Information Society of Nova Scotia offers a Lawyer Referral Service where you can arrange a 30 minute meeting with a lawyer for $20.00+HST. This will give you an opportunity to ask some questions and perhaps arrange to pay for additional time, as required. You can represent yourself. You can represent yourself and complete the required forms to obtain a divorce. The forms are found in Nova Scotia's Civil Procedure Rules, which are available on the Nova Scotia Courts website. A Do-it-Yourself divorce kit is available from the Supreme Court (Family Division) or Supreme Court. There is a small fee for the kit. Contact your local court for further information. Courts are listed in the government blue pages of the telephone book under 'Courts', or visit the Nova Scotia Courts' website at www.courts.ns.ca
If you decide to represent yourself, you should still ask a lawyer to review the forms before you file them with the court. Whatever option you choose, you should inform yourself about family law in Nova Scotia. To get more information about family law in Nova Scotia, you can try the following resources: The Legal Information Society operates a Dial-A-Law service on many legal topics, including several family law issues. Call (902) 420-1888 for a list of topics. The Society also operates a Legal Information Line.
The Court Services Division of Nova Scotia's Department of Justice operates Family Law Information Centres at the Supreme Court-Family Division in both Halifax and Sydney. Visit their website at http://gov.ns.ca/just/flic/
The Nova Scotia Association of Women and the Law publishes a free booklet called Understanding the Law: A Guide for Women in Nova Scotia. Paper copies are available from your local library or women's centre. Since the laws relating to separation and divorce are the same for men and women, the information in this booklet is also useful to men. A website called CANLII offers free access to Canadian laws and court decisions. You can also find Nova Scotia laws at the Nova Scotia Government website and on court information and procedures at the Nova Scotia Court website. Francophone Nova Scotians can get help from l'Association des juristes d'expression française de la Nouvelle-Écosse. Be careful before relying on information from websites or books from other provinces or from the United States. American law does not apply in Canada. Canada's Divorce Act is a federal law that applies across the country, but family law differs from province to province, especially on property rights. You also need to consider when a website or book was last updated. Laws change and information can go out of date quickly. Ask a lawyer if you are uncertain. Click here for a list of other possible resources.
return to top of page
|
