The Divorce Act provides four situations in which someone seeking a divorce will be prohibited from doing so. Those four circumstances exist where there is collusion, connivance, condonation, or where there is an absence of reasonable arrangements for child support.
Collusion exists where there is an agreement or conspiracy to subvert the administration of justice. In layman terms, collusion exists where there is fraud; for instance where the parties agree to fabricate or suppress evidence in an attempt to deceive the court.
An agreement to marry for immigration or citizenship benefits could be considered collusion, although it is not always deemed such. If the parties agreed to marry solely for such benefits, never intended to cohabitate and ultimately went separate ways after the marriage, there could be and inference of collusion. However, if it is obvious that one party was not aware of the other party’s intention to marry solely for citizenship benefits, collusion will most likely not be found.
Once the court decides that an inference of collusion exists, the burden shifts on the applicant for divorce to prove otherwise and negate the inference of collusion.
Where collusion exists, it acts as an absolute bar to divorce. This means that the court will not grant the divorce regardless of the circumstances or the basis for seeking the divorce
Connivance and Condonation
Unlike collusion, connivance and condonation are not absolute bars to divorce. If the court finds either in existence it will merely constitute a provisional bar to divorce if the grounds for divorce are a spouses’ adultery or cruelty. This provisional bar means that the court may still grant the divorce if it appears that the public interest would be better served by doing so. However, if the divorce is being sought on the basis that there has been spousal separation for on year or longer, the divorce will be granted despite a finding of connivance or condonation.
Connivance arises where the party seeking the divorce either encouraged or promoted the other party to engage in activities that now function as the grounds for divorce. A classic example of connivance is where a spouse either encourages adultery, or fails to prevent adultery despite knowledge of it, and then seeks a divorce on grounds of adultery.
Condonation, on the other hand, exists where the party seeking the divorce is aware of adultery, accepts the adulterous spouse’s apology, the parties resume marital cohabitation, and the non-cheating spouse eventually seeks a divorce on grounds of adultery. Courts are less inclined to prevent a party from obtaining a divorce on grounds of connivance as doing so may dissuade couples to make an attempt to reconcile.
Reasonable Child Support Arrangements
The final basis for preventing a divorce is if the parties have failed to make reasonable arrangements for the support of any child born of the marriage. To make a determination regarding whether the purported child support arrangements are reasonable, the court will consult the Federal Child Support Guidelines.
Reasonableness is determined after weighing the factors relevant in each individual case – a reasonable amount for child support will be different for a low-income couple than it will be for couples with greater wealth. The court will look at the income of the parties, as well as other factors including whether a party has intentionally taken a lower paying job or is intentionally unemployed to determine if the child support arrangement is reasonable.
If the court finds that there is no child support arrangement, or that the purported arrangement is not reasonable, the court will not grant the divorce. After the application is denied the parties must agree on a reasonable amount for child support before the court will grant the divorce.