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Married and Civil Union Spouses - The Consequences of a Breakup

Having the Right to Get Divorced

Gary and Rebecca’s relationship has been rapidly deteriorating. They fight about anything and everything the minute that they are in a room together. Gary thinks that they should just get a divorce. Rebecca isn’t sure that getting a divorce is that simple.

To get a divorce, a couple has to have “grounds for divorce”. That means that they have to have one of the reasons accepted by the law to get a divorce. What are these reasons? In this Infosheet, Educaloi explains the accepted grounds for divorce.

Who can ask for a divorce?

Either spouse may ask for a divorce.

The spouses can even ask for a divorce together if they agree about all of the consequences of their breakup (who gets what, custody of the children, etc.). Consult our Infosheet The joint application for divorce  (http://www.educaloi.qc.ca/en/loi/married_and_civil_union_spouses/140/) for details.

Regardless of whether a divorce is asked for by one spouse or by both, a divorce will only be given if there is a ground for divorce.

I want a divorce but my husband doesn’t. Can he stop me from getting a divorce?

No. It is enough if only one of you wants to divorce and is able to prove one of the grounds for divorce accepted by the law.

What reasons can I put forward to get my divorce (grounds for divorce)?

The law says that you must be in one of the following situations before you can obtain a divorce:

• you have been living separate and apart for 1 year;
  
• your spouse has committed adultery (had sex with someone else);
  
• your spouse has treated you with physical or mental cruelty making it intolerable to live together.

What does living “separate and apart” mean?

“Living separate and apart” means that you intentionally stopped living together. One of you must not want to share his life with the other. In one of your minds, the marriage must be over.

This intention would not be present, for example, if your spouse went to work abroad and firmly intended to return home at the end of his contract.

My wife moved out a week ago. Can I file for divorce right away even if we haven’t yet been living “separate and apart” for 1 year?

Yes. There is a difference between filing for divorce and getting a judgment in divorce.

You don’t have to wait a full year before filing for divorce. You can file right away provided that you and your spouse are no longer living together when you sign the application for divorce.

You won’t get a judgment in divorce until you can prove your ground for divorce, in this case, that you have lived separate and apart for 1 year. The judge will only pronounce the divorce after the full year is up.

You may need a judge to decide some matters (child custody, support payments, use of the family residence, etc.) between the day you filed for divorce and the day you actually get your divorce. You can ask for interim and provisional measures. To learn more about these measures, consult our Infosheet Breakups - Myths and Realities  (http://www.educaloi.qc.ca/en/loi/married_and_civil_union_spouses/351/).

I want to file for divorce on the ground that we have been living separate and apart for 1 year. Can I do this if I still share the house with my spouse?

It depends. Sometimes, spouses share the house for economic reasons although their relationship is over. They can still file for divorce on the grounds that they have been living separate and apart for 1 year. What’s important is their intention to live separately and they must prove this intention to the court in order to get their divorce on that ground.

The intention not to live together anymore can be shown by the following circumstances:

• living in separate rooms;
  
• not having sexual relations;
  
• little or no communication between the spouses;
  
• no mutual domestic services (like preparing meals for the other spouse, doing the other spouse’s laundry);
  
• separate food purchases;
  
• not eating together;
  
• having separate social lives.

I filed for divorce on the ground that by next January, we will have been living separate and apart for 1 year. What happens if my spouse and I get back together for a short period of time?

Obviously, couples that reconcile for good have no reason to worry about how to calculate the 1 year of separation needed to get a divorce. But there are other couples who are unsuccessful in their attempts to get back together.

What you need to know is that if you get back together for more than 90 days and then break up again, it can affect the calculation of the 1 year of separation.

For example, suppose you break up on January 1st. In both of your minds the marriage is over. You start the divorce process and in the divorce papers you state that you have been living separate and apart since January 1st. May 1st, you decide that you want to attempt to get back together again. You move back in with your spouse, and ask your lawyer to put a hold on your divorce papers. 30 Days later, it’s definitely over and you tell your lawyer to go ahead with the divorce. Since you only got back together for 30 days (which is less than 90 days), you can still use January 1st as the date that the marriage ended and you don’t have to remove the 30 days during which you got back together again. That means that you have been separated for 5 months already and in 7 more months, you can get your divorce.

Using the same example, if you got back together again for more than 90 days, say from May 1st to October 30th, then you would have to start calculating the 1 year of separation from October 30th.

The 90 day period does not have to be all at once. This means that from the moment that you start living apart, the amount of time you spend back together, even if not continuous, is added up .

I think that my wife is secretly seeing another man. Can I divorce her on the ground of adultery?

No. Adultery entails having sexual relations with someone other than your spouse. That means that if your wife was just meeting the other man for coffee behind your back, you can’t claim adultery.

Only the spouse against whom the adultery was committed can use adultery as a ground for divorce. For that same reason, you cannot apply for a joint divorce based on adultery.

If you choose to forgive your spouse’s adultery, you can no longer use it in the future as a ground to divorce her.

Finally, if proving adultery is too difficult or painful, you can always put forward other grounds for divorce.

Exactly what is meant by cruelty as a ground for divorce?

Physical cruelty exists when one spouse physically hurts the other spouse. For example, if one spouse beats the other spouse. Physical abuse includes sexual abuse.

Mental cruelty exists when one spouse purposely tries to hurt the other spouse other than by physical aggression (e.g. insults, humiliation, contempt, controlling behavior).

Sometimes, a spouse can be a victim of both physical and mental cruelty.

Physical or mental cruelty can only be used as a ground for divorce by the victim-spouse. That means that you cannot apply for a joint divorce based on cruelty.

To be a ground for divorce, the cruelty must make it intolerable for the victim-spouse to continue to live with the other spouse. In his evaluation, the judge will examine the acts, how often they occurred, and their consequences to the victim-spouse.

Is there a way I can avoid divulging my private life to the courts?

It all depends on the ground for divorce that is put forward. Whatever is put forward must be proven in court. It may be painful to prove that your spouse committed adultery or that she treated you with cruelty, especially if she won’t admit to it. You will have to give the details of the adultery or cruelty so that the judge can give you the divorce.

Remember that although divorce hearings are held privately, the court records are public. Anyone, including your children, may consult your court record and read what’s in there.

Do not hesitate to use the 1 year period of living apart as ground for obtaining a divorce whenever it is better for you to do so.

The advantage of using “adultery” or “physical or mental cruelty” as grounds for divorce (when you can prove them or they are admitted) is that sometimes, it allows you to get a quicker divorce.

If you are hesitant, discuss it with a legal professional. She can help you assess what you would have to prove if you apply for divorce on one ground rather than on another so that you can make the decision that’s right for you.

Will the judge punish my spouse if he committed adultery or treated me with physical or mental cruelty?

No. A judgment in divorce does not punish the spouse who is at “fault”. As the “victim” of the adultery or mental/physical cruelty, you don’t get more than your spouse. That means that the consequences of the divorce, such as the division of property, child custody or access and support payments, do not depend on the ground that you put forward in your divorce application. For example, your wife's adultery will normally have no impact on whether or not you owe her spousal support.

Sometimes a judge will consider what happened, not to punish one of the spouses, but for other reasons. For example, child custody is decided by seeing what arrangement is in the best interests of the children. Let’s say that you beat your husband in front of your son and that he filed for divorce on the ground of physical cruelty. The judge may decide that it is not in your son’s best interests to give you custody, especially if he is traumatized and wants nothing to do with you. The judge isn’t punishing you for what you did, but he has to do what’s best for your son.

My spouse and I have been living apart for over 5 years. Is it necessary for us to get a divorce?

Living apart from your spouse without making anything official by getting a judgment in legal separation or in divorce is called de facto separation.

It is important to know that de facto separation doesn’t end the rights and duties of marriage since you are still legally married.

Not doing anything to make your status official can have serious consequences on the lives of both spouses.

Here are a few of those consequences:

• As long as a judge has not put an end to your marriage by a judgment in divorce, your spouse still retains his or her status as a legal heir. This means that if you die without leaving a will, your spouse will inherit the share of your property that is provided by law.
  
• If you have not made your separation official by getting a legal separation or a divorce, you can still be held responsible for debts incurred by your spouse for the family’s needs;
  
• You cannot remarry or enter into a civil union with someone else until your spouse dies or until you get a divorce.

Also, you may run into practical difficulties should you have a change of heart and suddenly decide to get a legal separation or a divorce after having been separated de facto for that long.

Even if you find it unfair now, you may not be able to undo arrangements that you put in place for yourself and your kids during the time of your de facto separation. The way you arranged custody during the last 5 years, for example, won’t just change overnight because now you want it to and you signed legal papers asking for a divorce. What about your property? How much is everything worth now? How much was it worth 5 years ago? What if something was destroyed or sold in between? Can you find your bank statements and other financial papers from 5 years ago? It can become a nightmare to reconstruct what should have happened 5 years ago had you taken the time to make everything official and what you should be asking for and getting today.

Must I get a legal separation before filing for divorce?

No, it is not necessary to obtain a legal separation before filing for divorce. In practice, most people directly file for divorce.

Sometimes, there are good reasons for filing for legal separation first or for legal separation instead of divorce. For instance, you may need some time apart to think about whether or not you want to save your marriage and in the meantime, you do not want to be sued if your wife buys a big screen T.V. for the kids and is unable to pay for it. You may need some financial support for yourself and the kids during that time apart. You may want to immediately divide up your property, while everyone is still agreeable, in case you later decide that divorce is the appropriate option.

What’s important to remember is that if you are legally separated you are still married. For that reason, a legal separation does not have the same effects as a divorce.

For example:

• A spouse who is legally separated cannot remarry until his spouse dies. A divorcee can.
  
• A spouse who is legally separated can automatically inherit from his spouse who dies without a will. A divorcee cannot automatically inherit. For him to inherit from his ex-spouse, her will must say so.
  
• A legally separated spouse must be faithful to his spouse. Divorcees no longer have to be faithful to each other.