sa ahong pag sabot bai 'glac ang divorce ug annulment parihas ra ang naka deperensya lang ang requirments
yup. sa Canada, naay annulment ug naa poy divorce.
ako lang i-post diri, for info purposes:
Requirements for Divorce and Annulment
Script 120 gives information only, not legal advice. If you have a legal problem or need legal advice, you should speak to a lawyer. For the name of a lawyer to consult, call Lawyer Referral at 604.687.3221 in the lower mainland or 1.800.663.1919 elsewhere in British Columbia.
What are the grounds for getting a divorce?
The Divorce Act applies to all divorces in Canada. This law states that marriage breakdown is the only reason or “ground†for a divorce.
There are two legal reasons for marriage breakdown. They are:
* The separation of the husband and wife for at least one year
* A “marital offence†by the husband or wife
The two “marital offences†recognized by the Divorce Act are:
* adultery
* physical or mental cruelty
What does it mean to be separated for a year?
A separation where you live “separate and apart†from your spouse for one year is enough of a marriage breakdown to apply for a divorce. That usually means living in separate places. But some couples will continue to live in the same house and still be able to show they were living “separate and apart.†A lawyer can advise you if this is your situation.
When does the one-year period of separation start?
The time for the start of a separation is usually when you tell your spouse you want to separate. Your spouse doesn’t even have to agree to the separation. The only issue is whether you want to separate.
What if you reconcile for a short time?
A husband and wife who have separated can get back together or “reconcile†to try to make the marriage work again. But within the one-year separation period, they can only be back together for a total of 90 days or less. Then, if the reconciliation doesn’t work out, they can continue to count the one-year period starting from the date of the original separation. But if they stay together for more than 90 days, they have to start counting the one year again.
Also, if a couple continues to have sexual relations while separated, that doesn’t necessarily mean they intend to reconcile or get back together. This is a tricky point, however, and you would have to discuss it with your lawyer.
When can you get the divorce papers started?
You can start the paperwork the day you decide to separate and have the divorce papers “served†on or delivered to your spouse. If he or she is heading out of the province and could be hard to find at the end of the one-year period, it would be useful to start the divorce process as soon as possible.
What is a “desk order†divorce?
Once the year of separation is over, the spouse asking for the divorce can often get what is called a “desk order†divorce. This means that you don’t have to appear in court and give evidence. You simply sign a sworn statement called an “affidavit,†which contains all the necessary information. If you have children, however, more documents must be given to the court.
What about adultery?
Adultery, which is one of the two marital offences, happens when the husband or wife willingly has sexual intercourse with someone else – even if this happens after the husband and wife have separated.
Adultery is usually proved by having the spouse who did it admit that fact. He or she can admit this in an affidavit or another kind of sworn statement called “interrogatories,†or by testifying in court or at “examinations for discovery.†If your spouse won’t admit to the adultery, then you have to prove it some other way, for example, by having other witnesses testify that they actually know the adultery occurred.
What about cruelty?
The other marital offence is cruelty, which can be either physical or mental. You have to prove that your spouse’s behaviour toward you made it unbearable or intolerable for you to go on living together. Mental cruelty is more difficult to prove than physical cruelty. Unless it’s an extreme case, you’ll probably need a lawyer’s opinion to see if you have enough evidence for mental cruelty.
Can you get “damages†if you prove a marital offence?
Some people think they can get money called “damages†if they prove a marital offence. But damages are difficult to get, except in the case of violence, and your legal fees to pursue damages might be more than the money awarded to you.
What is the best way to proceed?
Because you can get a divorce based on a one-year separation without any other reason, a lot of people prefer to avoid the problem of trying to prove adultery or cruelty – even if adultery or cruelty has occurred – and just proceed on the one-year separation.
If you do decide to proceed on adultery or cruelty, be aware that your legal costs will be higher. Also, your spouse might fight the divorce, claiming there was no adultery or cruelty. If that happens, it might take longer than one year to get a divorce. Also, after one year has passed, your spouse can get the divorce anyway based simply on the one-year separation.
Are there reasons why a judge won’t grant a divorce?
Yes, they are:
* collusion
* connivance
* condonation
* insufficient child support
What do collusion, connivance and condonation mean?
Collusion is when you lie to the court, either in an affidavit or through your testimony. An example is if a couple agrees that the husband will lie about adultery that never happened to speed up the divorce.
Connivance is when one of you encourages the other one to commit a marital offence so you can get a divorce. This is a rare occurrence.
Condonation is when you have forgiven your spouse for committing adultery or being cruel. Say that a husband learns his wife has committed adultery but decides to forget about it, and continues to have sexual relations with her. He may have forgiven her in a legal sense and be unable to get a divorce based on that adultery.
What about insufficient child support?
Before granting a divorce, the judge must be satisfied that appropriate arrangements have been made for the financial support of the children. Refer to script 117 on “Child Support†for more information on this.
What is annulment?
A divorce is the proceeding you take to end a valid marriage. Annulment is the proceeding you take to end an invalid marriage. For example, a marriage might be invalid if one spouse was already married when he or she married the other, or if the husband or wife was under the age of 16. Sometimes, the financial consequences are different if the marriage is ended by annulment rather than by divorce.
If you were married outside of Canada, you should know that the question of whether a marriage is valid is determined by the laws of the place where the marriage occurred. So if the marriage was valid in your country, it will generally be considered valid here in BC too. To get a legal annulment, you have to go to court, but you’ll need a lawyer to help you.
Some religions also grant an annulment. These annulments are valid within that religion but are not legally binding. Speak to your religious advisor or leader about this.
Summary
To get a divorce, you must prove a marriage breakdown. This can be separation for one year, or the marital offence of adultery or cruelty. Collusion, connivance and/or condonation may prevent the divorce from being granted. In all cases, before granting a divorce, the judge must be satisfied that appropriate support arrangements have been made for the children. If the marriage was invalid, an annulment may be granted.
[updated October 2009]
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