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 SEPARATE or 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?” below 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 (see “can I get divorced” below for further information), 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.
The three ways to qualify for a divorce:
You can only get a divorce when there has been a breakdown of your marriage arising from:
- you have lived apart from your spouse for more than 1 year when you apply for a divorce
- both you and your spouse apply together for the divorce
- you do not need to prove that the other spouse was at fault
- OR your spouse has committed adultery
- you can apply for a divorce without your spouse
- you have to prove he /she engaged in adulterous activity
- OR your spouse has mistreated you through physical or emotional abuse, making it difficult for you to continue to live together
- you can apply for a divorce without your spouse
- you have to prove that he/she mistreated you through physical or emotional abuse
- physical abuse includes battery, physical harassment and rape, as well as any abuse of children. Although mental abuse may be more difficult to prove, verbal threats can be considered evidence of such 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 or your spouse have lived in a Canadian province or territory for at least 1 year immediately before applying for a divorce
You DO NOT need:
- status: you do not need to be a Canadian citizen
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.
If the spouses DO NOT AGREE on what they want, they can:
- go to mediation in the hope of reaching an agreement(see “what is arbitration and mediation for further information INSERT LINK)
- 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. Apply for Divorce
a. The court is officially informed of your decision to divorce.
2. Apply for a Provisional Order
a. If there are matters that need to be settled immediately, a spouse can ask the court for a “provisional order” (temporary, but immediate) for custody or support. These orders may be varied later on when the final judgment is rendered.
3. Got to Court
a. If the divorce is contested, each spouse will be asked questions by the other lawyer. This process may be intimidating, but is necessary for the judge to make her/his decisions.
b. ! IF both spouses agree on getting divorced and how your things will be divided, as well as support and custody issues, the spouses do not need to appear in court.
4. Get a Judgment
a. Once the judgment has been rendered, a period of 30 days must pass before the divorce is final. The spouses can then remarry as they wish.
5. Decide whether to Appeal
a. The divorce takes effect 30 days after the order was made. The time allowed for appealing a decision is 30 days. In the case of an appeal (when you disagree with the judge’s decision), the divorce comes into effect only after the appeal has been heard and decided.
b. ! It is always possible to return to court to apply for a review of support payments or orders concerning children if the circumstances of either party changes.
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.
- 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.
- FAMILY PATRIMONY: the value of the items falling within the family patrimony are split in half between the two spouses
- 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 – in making a decision regarding custody, the judge considers:
- the best interest of the child
- emotional and financial situation of each parent
- the opinion of the child
- 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 – in making a decision regarding custody, the judge considers:
- 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
- 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
- ! Household work alone is not often considered enough of a reason to give a compensatory allowance
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.
Section 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 recognises your relationship, therefore allowing you to benefit from the laws meant to help married couples.
http://www.cic.gc.ca/english/resources/manuals/op/op02-eng.pdf
What are the rights of a parent who obtains the custody of the children?
A parent with SOLE CUSTODY of the children has the right to make decisions with respect to the care, upbringing, education, health care, religion and general welfare of the children without consulting the other parent.
The other parent who has ACCESS RIGHTS only has a right to be informed and a right of surveillance concerning those types of decisions.
What happens if my spouse fails to make support payments?
- Support payments 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 made after December 1 1995
- The Act to Facilitate the Payment of Support provides that the Minister of Revenue collects the support payments form 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 payment s for one month.
If your require language assistance, you should contact a local community organisation that can direct you to or provide a translation service. Please see “Info & Help”.
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.
My spouse refuses to divorce me under religious law. What can I do?
The court does not have the power to grant a religious divorce and they cannot really force a person to seek a religious divorce. However, the court does recognize the inconvenience that this might cause the party who wishes to remarry. If your spouse has not consented to the religious divorce, you can present a sworn statement to the court explaining that fact. The statement must include all details required by the Divorce Act (such as dates, locations, etc.). See “Info & Help” to speak with a lawyer.
At that point, not only could you obtain monetary compensation for the inconveniences that your spouse’s refusal to grant the religious divorce has caused, but as well within the actual divorce proceeding the spouse who withholds the religious divorce might be denied certain rights and refused certain requests. For example, if the spouse refusing the religious divorce is requesting the right to sell the family home, this request could be refused and you could be declared full owner. By doing this, the court hopes to encourage the husband to grant the religious divorce but the court is unable to actually force an individual to remove the religious barrier to remarriage and cannot grant the religious divorce.
Bear in mind that this does not stop you from legally ending your marriage; you can always get a legal divorce.