In Canada, the most common reason given by an Applicant seeking a divorce with or without the agreement of the other spouse is separation. That means that they have lived separate and apart for a minimum of one year prior to the court signing a Divorce Order.
In parts of the UK (England and Wales), the current law requires parties to have lived separate and apart for a minimum of 5 years if one party is seeking a divorce without the other’s agreement. See this recent BBC article on the topic.
In all three countries, there are other reasons couples can apply for a divorce: cruelty and adultery in Canada, and adultery, unreasonable behaviour or desertion in England and Wales. However, as family law lawyers in Canada, we often advise clients to request a divorce on the basis of separation for a minimum of one year, although every case needs to be reviewed individually.
There are several reasons why it is usually preferable to file for divorce on the basis of separation, even where there has in fact been adultery or cruelty on behalf of one of the spouses:
- Cost: if the basis of the pleading is separation, the Applicant is not required to produce any further evidence other than a sworn statement confirming that the spouses have been separated for at least one year. If the Applicant pleads adultery for example, the court will require proof of precisely what occurred. If the alleged third party is named, he or she has to be provided with the application for divorce and may choose to answer it.
- Time: typically, by the time parties have worked through all issues arising from their separation including parenting arrangements, support, and a division of their property, nearly a year has passed in any case, and so the wait to apply is not unreasonable.
- Animosity: if parties are allowed to apply for a divorce simply because they have been separated for one year, there is no legal requirement for Applicants to add extra information. The requirements in the UK, as the article outlines, may actually increase the amount of animosity in divorce cases, because anyone seeking a divorce before the expiry of the 5-year time period needs to plead adultery, unreasonable behaviour, or desertion. The Canadian system allows divorcing couples to finalize things much more quickly.
Many of our clients have had challenging experiences during their marriages, including enduring adultery and cruelty. Even in those cases, we often suggest to parties applying for divorce that applying for a legal divorce on the basis of separation for at least one year will keep costs, time, and animosity to a minimum.