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Any divorce can be stressful and emotionally draining. But they can be especially difficult and even intimidating if one of the partners refuses to let go of the marriage. If you are in a marriage where there is any abuse and your partner refuses to change, the marriage can quickly fall apart, but getting your spouse’s consent could prove difficult.

The good news is that while consensual divorces tend to be much more straightforward, you do not need your spouse’s consent to get a divorce.

The Divorce Act

The Divorce Act is a piece of legislation that was introduced in Canada in 1968, and it is the legislation that continues to govern how divorces still work today. According to the Act, there are three grounds for divorce:

  • Living separate and apart for at least one year;
  • Cruelty, and;
  • Adultery.

Once these conditions have been met, either spouse may apply for a divorce with or without the other’s consent.

There are three types of divorce in Canada:

  • A joint divorce is where one spouse files for divorce with the other spouse.
  • An uncontested divorce is where one spouse files for divorce, but the other does not respond to the court within the 30-day time limit.
  • A contested divorce is when one spouse files for divorce, but the other either denies that they are eligible for divorce or contests the terms of the divorce, such as property division or spousal support.

What happens when a divorce is contested?

When one spouse contests a divorce, the divorce proceeds to family court. Where the spouse is not contesting the divorce itself but rather the terms of the divorce, the court can “sever the divorce,” which means that the divorce may go through immediately while the resolution of the terms continues to move forward.

When might a judge deny a divorce?

There are only three circumstances when a judge might not grant a divorce. These include:

  • When children from the relationship are not adequately supported, before a judge will grant a divorce, there must be an arrangement in place to ensure any minor children are adequately supported financially according to the Child Support Guidelines.>
  • When the spouse filing for divorce does not remove religious restrictions on the remaining spouse to re-marry, divorced persons in Canada must be free to re-marry within their religion. If the spouse filing for divorce prevents that, the judge may refuse the divorce.
  • Neither spouse has lived in the jurisdiction for an entire year. If at least one spouse hasn’t lived in Canada for at least a year, the court will likely deny the divorce application.

When the court is satisfied that proper provisions for children have been made and that the conditions for a legal divorce have been met, they will grant a divorce. Once the court grants a divorce, it will be considered legal thirty days after the judgment.

Contact Gelman & Associates for a consultation by phoning (416) 736-0200 or toll-free at 1-844-736-0200.

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