Legal Affairs: Divorce is not a matter of fault

…in practical terms it doesn’t matter whether or not one spouse wronged the other spouse.

In Canada, we have what is commonly referred to as a “no fault” divorce system.

Although there are still two “fault based” grounds for divorce available, in practical terms it doesn’t matter whether or not one spouse wronged the other spouse.

Under the Divorce Act, a spouse applying for a divorce must show the court that there has been a “breakdown of the marriage.”

A breakdown of the marriage can either be established by the parties living separate and apart for one year, or if the spouse against who the divorce is sought has either committed adultery or has committed physical or emotional cruelty such that continued cohabitation has become intolerable.

Many separating spouses may feel that they have been subjected to cruelty or have learned that their spouse has cheated on them and want their ex to pay for it.

While both scenarios are devastating, both can be quite hard to prove in court.

The court must be satisfied of the cruelty or adultery based on a preponderance of probability.

The innocent spouse would need affidavit evidence in which one of the adulterers admits the transgression, or to provide specific and compelling evidence of cruelty, corroborated by a third party.

Pursuing these avenues will invariably take longer and incur higher legal fees and the only advantage of doing so is that in theory the divorce order may be granted prior to the expiry of one year.

Therefore I often tell my clients, “It doesn’t matter whose fault it is!”

Even when infidelity or cruelty has occurred, the vast majority of divorces in Canada proceed on the grounds of living separate and apart.

Just Posted

Outbreak at Okanagan hospital

Gastrointestinal illness reported at Vernon Jubilee Hospital

Kelowna public menorah lit tonight to celebrate Hanukkah

The menorah will be lit tonight after celebrations at 5 p.m. in Stuart Park

Big Band supports children with disabilities in Lake Country

Proceeds from the Okanagan Big Band performance in Vernon supports local kids

Were your hockey cards stolen?

The Kelowna RCMP are looking to reunite a hockey fan with their cards

RCMP look to reunite owner with stolen tools

Kelowna police seek to identify the owner of tablet and tools seized by RCMP

VIDEO: New series takes in-depth look at sexual harassment in B.C.

Black Press takes a hard look at sexual harassment in B.C.

Warriors ground Rockets in Moose Jaw

Moose Jaw scores five in the third period to down Kelowna in Rockets’ third game of prairie road trip

Horgan says pot smokers may face same outdoor rules as cigarette smokers

B.C. is developing its rules on recreational marijuana

Dedicated volunteers look for clues

Police appreciate work of those who provide extra eyes for missing women investigations.

Truck driver volunteers to take dog lost in B.C. back home to Alberta

Frankie, a pit bull service dog, was found wandering in the Lower Mainland

B.C. teacher suspended after explicit images projected to class

Jeffrey Rohin Muthanna had been viewing porn on a school laptop for two years

Man who pledged to give B.C. hockey team millions charged with fraud

Mike Gould has since repaid $8,000 he allegedly owed Cranbrook restaurant, owner says

Horgan on Site C: ‘dammed’ if did, ‘dammed’ if he didn’t

B.C. premier didn’t like keeping massive hydro damn project going, but felt he had to

Strong economy fuels housing sales in B.C.: report

Economist says demand for houses is being supported by a large number of millennials entering the market

Most Read