Q – Under what circumstances may I get a divorce?
Q – We were married in another province, can I get a divorce in BC?
Q – Does it matter whose fault it is in the divorce?
Q – How long does a divorce take?
Q – How much does a divorce cost?
Q – Do I need a lawyer to get a divorce?
Q – What if my ex does not want a divorce?
Q – How long after living together with someone before we are considered “common law”?
Q – Under what circumstances may I get a divorce?
A – In BC, there are three grounds upon which a divorce may be granted:
- Separation of one year;
- Adultery (on the part of the person against whom a divorce is sought); and
- Physical or mental cruelty of such a kind as to render intolerable the continued cohabitation.
In practice, separation is the ground for divorce in the overwhelming majority of cases.
Q – We were married in another province, can I get a divorce in BC?
A – A divorce may be commenced in BC if either spouse has been ordinarily resident in BC for more than one year immediately before filing for divorce.
Q – Does it matter whose fault it is in the divorce?
A – No. For virtually all issues arising from a divorce, the conduct (or misconduct) of a spouse does not matter. The only scenario where “fault” comes into play is when considering the parenting arrangement of a child. In that case, “the best interest of the child” is the test and the behaviour of the parents is considered relevant.
Q – How long does a divorce take?
A – It depends on whether there are other issues to resolve and whether those issues are contested. If the spouses have already separated for one year (assuming that is the ground for divorce), and assuming both parties agree to the divorce, the paperwork for the divorce would take a couple of months. However, most divorces are intertwined with other issues, making it difficult to predict how long a divorce would take. It is also possible to deal only with the divorce, and defer the other issues to a future date.
Q – How much does a divorce cost?
A – Again, depending on the issues that need to be resolved and whether they are contested, the legal cost of conducting a divorce can vary widely. In addition to the legal costs, there will be costs associated with filing the paperwork in court, etc.
Q – Do I need a lawyer to get a divorce?
A – While there is no legal requirement to hire a lawyer, it is a good idea to get advice and the assistance of a family lawyer in BC. As described above, there are different legislations that apply and different levels of court to consider. A professional can help you navigate through these complicated decisions, and bring to your attention issues you may not have thought about.
Q – Who needs a divorce?
A – Only people who are married to each other, including same-sex couples, as defined in the Divorce Act need a divorce. You do not need a divorce (per se) from a common-law spouse to whom you were not married. However, there are undoubtedly other issues such as property, custody of the children, support payments, etc., that need to be addressed in the break-up of a common-law relationship.
Q – What if my ex does not want a divorce?
A – You can bring an application to a judge. If the legal basis for a divorce has been established, then the court may grant the divorce, even without the other party’s consent.
Q – How long after living together with someone before we are considered “common law”?
A – Under the Family Relations Act, two people who live in a marriage-like relationship for two years or more are defined as “spouses”. However, one has to be careful about the context in which this question is asked. For example, unlike married couples, common law spouses have no statutory right to family assets (such as the family home, the family car, investments, etc.) regardless of how long they live together (they may, however, have rights through other vehicles, such as the law of trust). On the other hand, for the purposes of the Income Tax Act, a couple is considered “spouses” if they have lived together for one year or more. There will be other legislations that define “spouses” differently. Whether two unmarried people are considered “spouses”, therefore, must be considered in the context of a specific legislation.
If all this sounds complicated, it is. A family lawyer in BC has to address different laws in different areas in giving you the best advice applicable to your situation.