It is important to realise that ending your marriage legally is different than ending it through religion. If your partner refuses to divorce you for religious reasons, you can always ask for a legal divorce without it affecting the status of your religious union.
If you are married, you can SEPARATE or get a DIVORCE.
(note: If you are in a civil union, you can have your union DISSOLVED.)
In a divorce, the marriage ends.
In a separation, the marriage does NOT end, but the couple lives apart. See What is separation? | Athena Legal Info for more information.
Example:
| Separation (from bed and board) | Divorce | |
| Civil status | Spouses are still married | Spouses are no longer married |
| Duty to live together | No duty to live together | No duty to live together |
| Ability to remarry | Spouses CANNOT remarry (because in Canada you can only be married to 1 person at a time – polygamy is not legal) | Spouses CAN remarry because they are no longer considered married |
| Inheritance | If one spouse dies, the other spouse will inherit if there is no will | If one spouse dies, the spouses will NOT inherit if there is no will |
| Rights and obligations | Spouses still owe each other the same rights and obligations as a married couple (e.g. obligation to provide support) | Spouses no longer owe each other the rights and obligations of marriage |
| Judgment | Can divide the family patrimony, determine the question of child custody, establish support payments to the children and to a spouse | Can divide the family patrimony, determine the question of child custody, establish support payments to the children and to a spouse |
In some cases, one spouse wants to start the process of living apart but can’t meet the legal requirements to get a divorce, or a divorce may go against the religious beliefs of one of the spouses, or one spouse isn’t ready to have the marriage come to a permanent end. See “can I get divorced” below for further information: How to end a marriage (divorce or separation) | Athena Legal Info .
There are three ways to get a divorce :
You can only get a divorce if there is a breakdown in your marriage because :
1.You have lived apart for more than one year at the time you file for divorce ;
- You can file for divorce with or without your spouse ;
- You do not need to give details of your private life.
2.Your spouse has committed adultery ;
- You can file for divorce without your spouse ;
- You must prove your spouse’s adultery.
3.You have been ill-treated by your spouse and physically or psychologically abused, making life together difficult ;
- You can file for divorce without your spouse ;
- You must prove that your spouse has mistreated you and that you have been the victim of physical or psychological abuse ;
- Physical abuse includes assault, physical harassment, sexual assault and rape, as well as child abuse. Although psychological abuse is more difficult to prove, verbal threats can be considered a form of abuse.
You DO need :
- Legal proof of marriage : be legally married in Canada or abroad and have the documentation to prove its legal validity (e.g. legal, not religious, marriage certificate) ;
- Real intention : intend to separate from your spouse permanently or have already separated and believe the marriage is over ;
- Residency requirement : you and your spouse must have lived in a Canadian province or territory in which you are seeking a divorce for at least one year prior to filing for divorce.
You DO NOT need :
- Status : you do not need to be a Canadian citizen to ask for divorce.
If the spouses AGREE on what they want, they can :
- See a lawyer or a notary who will draw up the agreement they will present in court and file a joint application on your behalf ;
- Go for mediation. See “What is arbitration and mediation?” below for further information : What is arbitration and mediation? | Athena Legal Info) .
If the spouses DO NOT AGREE on what they want, they can :
- See separate lawyers who will initiate the process. The divorce is then called a “contested divorce.” To find a lawyer, please see “Info & Help”.
1.Application for divorce: launching the proceedings :
At this stage, also known as “ the commencement of proceedings “, one of the spouses (or his or her lawyer) must prepare a written request called an “Application for Divorce” and gather certain mandatory documents.
The spouse then files the application for Divorce and accompanying documents at the courthouse to open a file with the Court.
The divorce petition and accompanying documents must also be forwarded to the other spouse, by bailif. This is called “service”.
2.Presenting the requests :
The spouse receiving the application for divorce (or his or her lawyer) must then “file an answer”, i.e. prepare a written document stating his or her intention to agree to an amicable settlement or to contest the other spouse’s petition. The reply will also indicate the contact details of his or her lawyer, if he or she has one. Generally, the spouse who receives the application for divorce (or his or her lawyer) has 15 days to file their reply, failing which judgment may be rendered in their absence.
3.The case protocol :
The spouses (or their lawyers) then prepare the case protocol, i.e. the schedule of the main steps that will take place up to the hearing.
To achieve this, the spouses must work together, since there is only one case protocol for each case.
The spouses have three months from the notification of the application for divorce to file their case protocol with the court.
4.Hearing on Provisional Measures :
At this hearing, a judge hears the spouses, provided one of them has filed a request for provisional measures. The decision made by the judge will remain in effect until the final divorce judgment.
The hearing on provisional measures can take place several months after the start of the process.
5. Fixing the hearing date :
When the file is ready, the spouses (or their lawyers) request a hearing date.
To do so, they must work together to complete a form called “a request for setting down for trial” and file it with the courthouse.
The spouses must submit this form no later than one year after the case protocol is accepted by or established by the court.
6.The trial and judgment :
If the spouses do not agree on the details of their divorce, they can appear before a judge who will make a decision regarding their situation.
The divorce becomes official on the 31st day following the date of the judgment. Once the divorce is official, the Court sends the ex-spouses their divorce certificate.
For more information, please visit : Main steps in a divorce (gouv.qc.ca) and Divorce Court Process: Main Steps | Éducaloi (educaloi.qc.ca)
When you get divorced, several things can occur:
DIVISION OF YOUR THINGS :
The legal term is “partition of your patrimony and the family patrimony”. Please see the section on “What happens to my things when I get married ?” of “Marriage and Civil Union” for further information on patrimonies.
The division of your things is based on the notion of the «family patrimony». What is the family patrimony? :
- FAMILY PATRIMONY: The value of the items falling within the family patrimony are split in half between the two spouses.
- Things falling within the family patrimony include the family residence, household furniture and decorations, family vehicle, and retirement savings.
- The value of the items is calculated by looking at the market value (what the selling price of the items would be worth now if bought) of all the family’s patrimony.
- Consideration is made of any expenses one of the spouses may have made to the purchase, improvement, or upkeep of the items within the family patrimony.
- PERSONAL PATRIMONY: What happens to your items that do not fall within the family patrimony is determined by your matrimonial regime (automatically it is “partnership of acquests” or, if you have a contract it is “separation as to property.” Please see the section on “Matrimonial Regimes” of “Marriage and Civil Union” for further information on patrimonies.
SPOUSAL SUPPORT/ALIMONY :
- Spousal support is meant to help the spouse start a new life apart from their partner, and it is often only paid temporarily.
- The spouse seeking support must submit an application to the court, as well as a summary of the spouse’s financial situation and financial needs.
CHILD SUPPORT :
- OBLIGATIONS : Whether you are divorced or not, both the mother and the father always have the same obligations to ensure that their children be educated, supervised, and cared for.
- This contribution can be either in the form of money, or time spent with the children.
- The amount of support to be provided is calculated considering: the total income of each parent, the number of children, the custody time, and any additional costs that the specific child may need.
- CUSTODY : Both parents retain their parental authority, unless there is a court order that states otherwise.
- If parents disagree as to how child custody will be shared (who looks after the child and when), the judge decides whether custody will be shared or given to just one of the parents . When a judge makes a decision about custody, he or she will consider the best interests of the child. The best interests of each child vary according to a number of factors. Example of factors, the child’s :
- Age ;
- Relationship with each parent ;
- Their state of health ;
- His parents’ ability to communicate with each other ;
- His parents’ ability to care for him ;
- The presence of domestic violence.
COMPENSATORY ALLOWANCE :
- Compensatory allowances are paid when one spouse has contributed to the enrichment of the other spouse – the objective is to compensate the losses suffered by one spouse for the benefit of the other.
Yes. If a woman/man is divorced she/he may be eligible to receive spousal support (spousal support is meant to help the spouse start a new life apart from her/his partner, and it is often only paid temporarily). Relevant factors in deciding the amount given include: the economic disadvantages to the spouses arising from the divorce, the spouse’s degree of responsibility for caring for the child of marriage, and the spouse’s ability for economic self-sufficiency.
GENERAL
If a woman wants a divorce but doesn’t have a Canadian marriage certificate, may she ask for a divorce?
A woman can ask for a legal divorce in Canada even if she was not married in Canada, as long as she has lived in a Canadian province for 1 year. (article 3.1 of the Divorce Act )
There are three scenarios that can arise and affect whether or not she can apply for a divorce :
- No marriage certificate : no – If she has no marriage certificate, she is not considered legally married and therefore has no grounds to ask for a divorce. If her certificate is not accessible, or if it is lost, she can apply for a new one.
- Only a religious certificate : no – If she only has a religious certificate proving her marriage, she is not considered legally married in Canada and therefore has no grounds to ask for a divorce, unless she has had her marriage registered.
- Only a marriage certificate : maybe – If she has a marriage certificate from abroad proving the legal validity of her marriage, she is considered legally married as long as it is valid under the laws of the jurisdiction where it took place and under Canadian law. It is recommended that the marriage be registered as soon as you move to Canada to ensure that the government recognizes your relationship, therefore allowing you to benefit from the laws meant to help married couples.
What happens if my spouse fails to make support payments? :
For support payments judgments that were made before December 1, 1995 :
- You can go to court in the district in which the judgment awarding support was rendered and notify the clerk of the Court who will ask you to fill out an application.
- A service is provided by the Minister of Revenue which facilitates the collection of support payments.
- When your application is received, the debtor shall make his support payments to the Minister of Revenue for your benefit or payments will be deducted at the source and eventually transferred to you.
Support payments judgment that were made after December 1, 1995 :
- The Act to Facilitate the Payment of Support provides that the Minister of Revenue collects the support payments from the debtor, and then transfers the money to the creditor.
- Such support payments are made either through the source deduction or payment order.
- This procedure is the general rule and applied automatically unless an exemption applies.
- By exception, if the parties do not want to obtain that service from the Minister of Revenues, they have to specify it in their divorce or separation agreement or make a joint application.
- In that case the debtor will have to furnish the Minister of Revenue with sufficient security to guarantee support payments for one month.
RELIGION & DIVORCE
If I get a religious divorce in Canada, does this mean I am legally divorced? :
No, a divorce in Canada will only be recognized if it has been pronounced by a judge. As a result, a religious divorce does not constitute a legally valid divorce. For example, if you were granted a divorce under religious law but not under Canadian law you will not be able to remarry in Canada because your first marriage would still be in effect and being married to more than one person is a crime.
I have a religious marriage contract with my husband, and in it we agree to certain things in keeping with our religious tradition. Will this contract be enforced by the courts? :
If you signed a contract that contains clauses related to religious traditions a court has the power to review or enforce the clause. The validity of such clauses will depend on whether or not they respect contract law, policies and democratic values of Canadian law.
For example, imagine that before your marriage, you and your husband agreed in a contract that he will pay you $10 000 if you separate in accordance with your religious tradition. If your husband refuses to pay the $10 000 when you separate, you can ask the courts to order him to do so. Before making that order, the courts will look at the contract you created and decide whether it meets the requirements that the Civil Code of Quebec sets out for the formation of contracts.