Divorce is never the easiest solution to marriage your problems, but sometimes it is the best path to personal happiness and fulfillment. Once you determine that divorce is the best course of action for your relationship, you can start the process by filing a divorce application with the Supreme Court of British Columbia.
In order for the Court to accept and process your application, the following criteria must be met:
1. You must be legally married to your spouse. Divorce filings do not apply to common law partnerships.
2. You and/or your spouse must have lived as a resident of BC for at least one year prior to filing for divorce in BC.
Grounds for Divorce – Why are You Filing?
The length of time you must remain in a marriage prior to filing for divorce depends on why you are filing for divorce. Your reasons for seeking a divorce are legally known as your grounds for divorce.
Some grounds for divorce naturally suggest a time frame for filing. For example, in order to file under the grounds that you and your spouse have lived separate and apart for a year, you need to actually live separate and apart for at least one full year prior to filing for divorce.
Most legal grounds for divorce do not require you to remain in the marriage for any specific length of time. If you can prove that your specified grounds for divorce apply to your marriage, then the Courts are likely to accept your divorce application. All grounds are based on the breakdown of your marriage in some manner, so you are proving that you have justified reasons to dissolve your marriage.
Following is an introduction to the three legal grounds for divorce acknowledged in British Columbia:
1. No Fault Divorce
Living separate and apart. You and your spouse must live separately for at least one year prior to filing for divorce. If you lived together for more than 90 days within the year prior to filing, you will need to continue living separately until you have achieved one year with no more than 90 cumulative days under the same roof.
Oswell vs. Oswell [1990] O.J. No. 1117 (HC) changed the way courts determine what meets the criteria for living “separate and apart.” If you cannot afford to live in separate homes, the courts can use a five-criterion test to determine whether you have lived separate and apart even while sharing a residence. The five criteria included in the test are as follows:
- Is there proven physical separation between the parties? For example, do they live in separate bedrooms or a partitioned home?
- Are the parties still involved in obligations of the marriage?
- Are the parties sexually involved? This is an influence on the decision, but you can be ruled separate and apart even with ongoing sexual engagement.
- How do the parties interact and present themselves in daily life? For example, how much time do the parties spend together and do they present themselves as a couple to others?
- How does the couple distribute household chores? DO they live their own lives within the household, or are chores shared and completed together?
2. Adultery
Your spouse must engage in a sexual act with someone outside of your marriage without your consent, and you must refuse to forgive your spouse for that act of betrayal. It does not matter how long you have been married. You can file on the grounds of adultery if you were not the person to commit adultery, and you did not forgive the transgression.
3. Physical/Mental Cruelty
Your spouse abuses you physically and/or mentally to the point the marital arrangement becomes intolerable. In most cases, the use of adultery as grounds for divorce involves considerable abuse and a degree of violence. If you feel your spouse is mean to your arguments have become intolerable but not abusive, you probably do not have enough to prove this grounds for divorce in court. You do not have to wait any length of time to file for divorce under the grounds of physical or mental cruelty.
You cannot use this grounds for divorce if you have forgiven your spouse for past acts of abuse, or if you are proven to have schemed the abuse with your spouse for the explicit purpose of filing for divorce faster.
Children and Divorce
You will have to prove to the Court that you and your spouse have made the necessary arrangements to take care of all involved children now and in the future. This includes establishing a legal child support agreement that is acknowledged by the Court.
Do You Need a Lawyer?
You can file for divorce in BC without hiring a divorce attorney, but it is to your advantage to at least consult with an experienced BC divorce lawyer prior to filing in Court. An attorney can ensure all legal documents are prepared accurately and to your advantage. A lawyer can also inform you of your responsibilities and rights as you go through the divorce process.
