Grounds for divorce are legal reasons that justify the end of a marriage. In British Columbia, as in all provinces and territories in Canada, there is only one acceptable ground for divorce: the irretrievable breakdown of the marriage, as outlined in the federal Divorce Act.
Establishing the grounds for divorce is the starting point before divorce paperwork is filed at the Supreme Court. You must also meet the residency requirements, which state that at least one spouse must have lived in the province for at least one year.
Nowadays, the vast majority of divorces are no-fault divorces based on separation and mutually agreed terms, rather than either spouse having to prove fault in the marriage.
Let’s take a closer look at the legal grounds for divorce in BC and what they mean in real terms.
How to establish the “breakdown of a marriage” in BC
After confirming that you meet the residency requirements, divorcing couples must decide how to establish the irretrievable breakdown of the marriage with the court.
For most couples, this will involve separation for at least one year. The Divorce Act defines it like this:
“The spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding.”
The separation period is designed to provide a period of reflection. Some couples change their minds and reunite within this year-long period, preventing an unnecessary divorce.
Otherwise, after a year of separation, a BC judge can legally grant a divorce. You can start the divorce application before then. Paperwork can be filed at any time after separating, but until you can show a one-year period of separation (or more), the divorce cannot be finalized.
The other two possible reasons that can establish the irretrievable breakdown of a marriage, as per the Divorce Act, are:
- Physical or mental cruelty
- Adultery
These grounds are rarely used to prove the breakdown of a marriage nowadays, despite what you may see in the movies.
“No-fault” divorces vs. “at-fault” divorces
“At-fault” divorces requiring proof of cruelty or adultery involve considerably more legal work and increase the caseload at court compared to a divorce based on separation. They are also usually more adversarial and expensive than “no-fault” divorces. At-fault divorces are, therefore, generally discouraged by the legal system. No-fault divorces have become the norm in BC.
No-fault divorces require no allegations, blame or proof of wrongdoing by either party, reducing the possibilities for conflict, legal wrangling, and the wastage of precious court time.
In particular, for couples with children who will be co-parenting, avoiding a long, legal battle should be a priority. This is much more likely if proof of wrongdoing is not required during the divorce.
With a no-fault divorce, spouses simply need to prove that they have lived apart for at least one year. In the majority of cases, this involves a physical separation (one spouse moves out of the marital home) but divorces have been granted where the spouses have lived separate lives under the same roof. For this to happen, evidence must be provided of the spouses operating their lives separately including financially, romantically, domestically, and socially.
Financial considerations
Financial considerations impact not only the separation process (Where does each spouse live? Who gets to stay in the home?) but also the type of divorce sought.
At-fault divorces are usually far more expensive because of the legal time required and court fees involved. Sometimes, if a judge considers that the at-fault divorce application is unnecessary, and a no-fault divorce is in everybody’s interests, the filing party may be asked to pay the court costs and the other spouse’s legal fees.
Does a prenuptial agreement affect the grounds for divorce?
A prenuptial does not affect the grounds for divorce in British Columbia or elsewhere in Canada.
However, marriage agreements like a prenuptial or postnuptial can greatly affect divorce proceedings, especially when it comes to financial matters like property separation and spousal support.
These agreements can help prevent legal disputes and stress during separation, while retaining decision-making powers with the spouses rather than having a judge decide.
How long does a divorce take in BC?
The length of the divorce process in BC depends on many factors, most notably the following:
- The grounds for divorce
- How contentious the divorce is
- The caseload at the local court
The fastest and most affordable way to divorce is to file for a no-fault divorce before the one-year separation period is up. During the separation, spouses can work on a mutually agreeable divorce settlement to be presented to the court.
After the separation period is up, the judge generally just needs to approve the agreement and the divorce will be granted. If the agreement is legally enforceable and the paperwork is correct, this process can often be finalized within a month or two of the completion of the separation period.
However, delays can occur in the process, especially if one of the spouses contests the reason for divorce or the terms of the settlement, which is not uncommon.
Sometimes, too, a couple decides to reunite after filing for divorce. They get back together and then decide to separate again. In these cases, if the couple reunites and lives together for longer than 90 days after filing for divorce, they need to begin the 12-month separation period again before a divorce can be granted.
An at-fault divorce can “skip” the mandatory one-year separation period but, on the other hand, it can take a year to bring the case to trial, not to mention the extra stress and expense involved in the process.
Is a separation agreement necessary for a BC divorce?
Couples do not legally require a separation agreement to get a divorce in BC, but it is often an advisable starting point.
Separation agreements can effectively detail how the core issues in the divorce have been resolved. Without this, alternative dispute resolution methods may be required to resolve issues, such as mediation, which can still result in a separation agreement being produced. If no separation agreement is possible, arbitration or litigation and a trial may be required.
One thing is certain: no judge will grant a divorce until satisfied that all outstanding issues in the relationship have been resolved. This is especially the case if there are children from the marriage, as the courts must protect the child’s physical, mental, and emotional well-being and best interests.
Creating a separation agreement shows the judge that a couple has collaborated on decisions that they can commit to. This will generally be viewed favorably and can potentially save legal fees, court time, and court costs.
The more outstanding issues there are between spouses, the longer the separation agreement may take, but the more important it becomes to put the work into it and find solutions.
The legal assistance and advice from experienced divorce lawyers can help the collaboration and negotiation process, especially if one of the spouses is reluctant to collaborate on a separation agreement.
For a free 30-minute consultation about your legal options during a divorce or separation, contact the team at Legalbird today.
