Perhaps you are involved in a divorce case and you are looking to educate yourself on the topic?

No matter the reason, we have a great article for you on divorce.

In this article, we will discuss things like what is a divorce, the law in Canada that governs the divorce, the divorce grounds, the objective of the Divorce Act, difference between a divorce and a legal separation or a marriage annulment, contested divorce, at-fault divorce, summary divorce, amicable divorce and more. After reading this article, you will know a lot more about divorce!

This article is divided as follows:

1. What is a divorce?
2. What laws govern divorce in Canada?
3. What court has jurisdiction on divorce matters in Quebec?
4. What is the alternative to a divorce?
5. What are the divorce objectives?
6. What are the 3 grounds for divorce?
7. What is the difference between divorce and annulment?
8. What is the difference between divorce and legal separation?
9. Why file a legal separation file instead of a divorce?
10. What is a contested divorce?
11. What is an at-fault divorce?
12. What is a summary divorce?
13. What is a no-fault divorce?
14. What is an uncontested divorce?
15. What is a collaborative divorce?
16. What is an electronic divorce?
17. What is an online divorce?
18. Divorce Takeaways

Let’s get started!!

1- What is a divorce?

It’s a dissolution of the marriage

A divorce is the legal dissolution of the marriage.

In other words, a married couple looking to terminate or dissolve their marriage will seek a divorce from the local Courts in the Province where they live.

By way of a divorce, once the marital union is dissolved, the formerly married couple will no longer have any legal obligations towards one another.

Typically, married couples are required to adhere to certain obligations such as cohabitation obligations, mutual support and assistance, along with other matrimonial obligations.

Divorce judgment dissolves the marriage

When the divorce courts render a divorce judgment, such obligations are dissolved and so the couple can move on with their lives.

Only married couples are able to ask for a divorce and the divorce judgment can only be rendered by the competent Court.

2- What laws govern divorce in Canada?

Divoce is governed by the Divorce Act in Canada

In Canada, the divorce institution is governed by the Divorce Act.

Under the terms of the Divorce Act, the divorce must be rendered by the competent Provincial Court.

The law outlines several requirements to be met authorizing the Court to render a divorce judgment.

The Divorce Act is a federal law that applies in all Provinces and Territories in Canada.

The provincial and territorial laws will apply with respect to the Court procedures on how to effectively file for divorce along with matters such as the division of marital property.

Legal matters governed by the Divorce Act

Some of these requirements are as follows:

1. Court jurisdiction
2. Residency requirements
3. Divorce grounds
4. Calculation of separation period
5. Duty of a legal advisor
6. Duty of the Court
7. Corollary relief
8. Child support orders
9. Spousal support orders
10. Parenting orders (formerly custody orders)

The Divorce Act is a comprehensive set of legal provisions where the Canadian legislator attempts to deal with the separation of a Canadian couple in a fair and equitable way.

3- What court has jurisdiction on divorce matters in Quebec?

Superior Court of Quebec has jurisdiction over divorce in Quebec

In Quebec, the Provincial Court dealing with family law matters and divorce is the Superior Court of Quebec.

In rendering a divorce judgment, the Court must observe the requirements of the Divorce Act.

Each Province will have its own local court rules of procedure 

The procedure governing the format and content of a divorce application along with any supporting legal forms and documents are determined by the Quebec Province.

Each Province in Canada adopts its own court rules of procedure to handle family matters including divorce.

For instance, the Regulation of the Superior Court of Québec in family matters Code of Civil Procedure outlines the procedural requirements for engaging with the Superior Court of Quebec in family matters.

When the Superior Court of Quebec renders a divorce judgment, the judge will apply the same principles derived from the Divorce Act just like how any other judge in any other Canadian Province of Territory would.

Quebec laws are influenced by the civil law tradition

The main difference in the Quebec system is that the partition of the assets and some other elements are handled by the civil legal system in Quebec.

The Court in Quebec will be influenced by the civil tradition of the Quebec laws and the principles contained in the Civil Code of Quebec when applying the terms of the Divorce Act.

An underlying objective of the Civil Code is to ensure that the principles surrounding the best interest of children or others remain consistently applied.

All other Provinces and Territories operate under a common-law regime and thus will consider jurisprudence differently.

Notably, considering the Divorce Act is a federal law binding upon all provinces and territories, the Courts of each province will also attempt to remain consistent in their application of the law.

The rulings of the Supreme Court of Canada will have a direct impact on how each province will interpret and apply the terms of the Divorce Act.

4- What is the alternative to a divorce?

An alternative to a divorce for married couples is a legal separation

If a married couple does not intend to formally dissolve their marriage and wants to separate from one another, they can file for a separation as to bed and board application, more commonly referred to as ‘legal separation’.

The laws in the Province of Quebec regarding legal separation do not apply for a divorce or unmarried couples.

The consequences of a legal separation is similar to a divorce

The legal separation regime involves handling nearly the same matters as in a divorce case, such as:

1. Court jurisdiction
2. Residency requirements
3. Divorce grounds
4. Corollary relief
5. Child support orders
6. Spousal support orders
7. Parenting orders and child custody

Residency requirement differs

For the Superior Court of Quebec to be legally enabled to render a divorce judgment, one both couples will need to have resided in the Province of Quebec for at least twelve months.

With regards to a legal separation, it’s only required to show that the filing party was residing in the Province of Quebec at the moment of the filing of the application. 

Marriage is not dissolved

The other notable difference is that a Court will not dissolve the marital bond when rendering a judgment with regards to separation as to bed and board.

5- What are the divorce objectives?

The objective of the Divorce Act is to provide in an equitable breakup between the married couple by applying legal standards to the following:

1. Division of assets and distribution of the couple’s property
2. Division of debts and liabilities
3. Child support and expenses
4. Parenting obligations and parenting time also custody and access rights
5. Spousal support and alimony

The Divorce Act provides the rules and parameters to help couples separate should they fail to mutually agree on their own.

Typically, a settlement agreement, although it may not be perfect, will be advisable as opposed to having a judge render a divorce judgment in a contested and adversarial trial.

6- What are the 3 grounds for divorce?

Under the Divorce Act in Canada, there are three divorce grounds: 

1. Separation for over twelve months
2. Adultery
3. Physical or mental cruelty

Twelve month separation

The first ground is the separation of over twelve months.

Essentially, the married couple informs the court that they have been living separate and apart for more than twelve months and asks the court to render a divorce judgment.

This requirement must be satisfied on the day the judge is rendering the divorce judgment.

You do not have to wait twelve months before starting or applying for a divorce.

Adultery

As for adultery, it’s pretty self-explanatory.

There needs to be a sexual act committed by the other spouse and that such act has not been condoned.

The spouse who commits the act of adultery cannot invoke his or her own act of adultery as a ground for divorce.

This divorce ground must be proven in court.

So the spouse invoking adultery as a ground must bring evidence to demonstrate the infidelity of the other spouse. 

Physical and mental cruelty

Finally, physical and mental cruelty is the third ground for divorce under the Divorce Act.

This divorce ground can cover an important range of situations that the Courts may consider to grant a divorce.

If the Court considers that the actions of a spouse has resulted in a physical or mental cruelty rendering the cohabitation intolerable, then the Courts will accept to grant a divorce on this ground.

Some examples of behaviours that could lead to physical and mental cruelty are the following:

1. Sexual harassment
2. Alcoholism
3. Disability
4. Desertion
5. Physical violence
6. Psychological harassment
7. Domestic violence towards the spouse, children or other family members

7- What is the difference between divorce and marriage annulment?

Getting a divorce or seeking the annulment of the marriage are two very unique and different legal demands with very different legal foundations.

Your marriage is assumed as valid in a divorce proceeding

Where in the context of divorce, we assume that the marriage was valid and we determine the most appropriate and equitable distribution of assets and handling of other obligations for dissolving the marriage.

In an annulment proceeding, you attack the validity of your marriage

For an annulment, you are essentially attacking the validity of the marriage retroactively to the date of the marriage.

The annulment is essentially requesting the cancellation of the marriage.

If an annulment order is granted, the law will cancel the marriage and the marriage will be deemed as if it had never happened.

As a result, the Court will attempt to make the parties whole and restitute what the parties have brought into the marriage.

The annulment procedure is exceptional and, in Quebec, requires that the action be instituted within a certain timeline.

Be sure to read our article on marriage annulment vs divorce where we cover the topic in more detail.

8- What is the difference between divorce and legal separation?

Married couples can get divorced or legally separate

Married couples have essentially two options, they can get divorced or legally separate from one another.

A divorce is a definitive dissolution of the marriage

If the married couple wishes to live separate and apart, in a definitive and permanent way, and dissolve their marital bond, then they should ask for a divorce.

By asking for a divorce, the Courts will render a divorce judgment dealing with all the consequences of the separation, such as dividing of the assets and debts, spousal support, child support, parenting rights and time and any other important matter for the couple.

The divorce judgment dissolves the marriage forever

In addition to that, by issuing the divorce judgment, under the Canadian law, thirty one days after the judgment has been rendered, the marriage is formally dissolved and the divorce takes effect.

The couple will then receive a divorce certificate issued by the Court establishing the termination of the marriage.

Once the marriage union is dissolved, then the couple will have the legal rights to get married again if they choose to do so.

Legal separation preserves the marital bond

A legal separation is where, similar to a divorce, the married couple wish separate and apart, in a definitive and permanent way, but they do not wish to dissolve their marital bond.

Therefore, by filing a legal separation application, the couple will need to manage the consequences of their separation in nearly the same way as a divorce, such as dealing with their assets, financial support, children and so on.

The consequences of legal separation are similar to a divorce 

Considering that the Court does not dissolve the marital bond, the couple formally remain married although they do not have an obligation to cohabitate and provide one another with mutual assistance and support.

They can lead a fully independent life and their life decisions will no longer have an impact on the other spouse.

9- Why file a legal separation file instead of a divorce?

There may be many reasons why a couple may decide to ask for a legal separation as opposed to a divorce.

Legal separation is preferred to divorce for religious reasons

The reason may be religious.

In other words, if the dissolution of the marriage is not an option they can entertain from a religious point of view, then, the couple will go for a legal separation.

Legal separation is preferred to a divorce for some tax benefits

Other reasons may be to continue benefiting from some tax or benefits that the couple would want to protect.

File a legal separation to bridge a residence gap

Alternatively, it could also be merely to bridge the residency gap for seeking a divorce.

What do we mean by that?

Well, under the Divorce Act, to ask for a divorce in the Court of your Province, you must have lived in that province for at least twelve months.

However, to file a legal separation, you must be living in the province as of the moment of the filing.

So you may want to immediately start the legal proceedings against your spouse by filing a legal separation application and when you complete your twelve months residence requirements, file a divorce application thus superseding the legal separation file.

You can ask for a divorce at any time after a legal separation judgment is rendered

You can ask for a divorce at any time after the legal separation judgment has been issued.

In other words, at any point in time that you wish to dissolve your marital bond, even after the issuance of a legal separation judgment, you can file for a divorce application and indicate to the Court that the consequences of the divorce were already dealt with during your legal separation file.

The Court will then render a divorce judgment and reconfirm the partition of the assets and terms of your legal separation.

Of course, certain things may be modified having to do with children and child support as these subject matters evolve over time, but the actual partition of the family patrimony, assets and liabilities will tend to be what was decided under the legal separation file.

10- What is a contested divorce?

A divorce case that is submitted to a trial judge

A contested divorce is one where due to disagreements between the couple in how to handle the consequences of their marriage will be submitted to a trial judge for a hearing.

At the trial level, a divorce judge will hear the parties, the representations made by their attorneys and will consider the evidence to render a judgment on the contested issues.

A contested divorce is very expensive

It goes without saying that a contested divorce is a very expensive venture.

Considering that your case will go to trial, your divorce lawyer will need to spend time preparing for the case, meeting with the witnesses, prepare you for your case, review the law, doctrine and jurisprudence and spend several days in Court making the necessary representations for you.

You will also need to take time off from your work and regular life to go through this very stressful and adversarial process.

There are certain points in a divorce that may result in a dispute between the parties and that could be the division of the assets or more importantly the parenting time and custody with the children.

11- What is an at-fault divorce?

A type of divorce where a spouse invokes a fault against the other

An ‘at-fault divorce’ or a ‘fault divorce’ is one where a spouse establishes a marital fault against the other as a ground for seeking a divorce.

In Canada, the fault can be categorized in acts of adultery or acts of physical or mental cruelty.

In such cases, the spouse filing for a divorce will need to factually demonstrate and prove the fault on the basis of which the divorce is being requested.

The acts in question will need to have occurred during the marriage and not pardoned or condoned.

For example, invoking the infidelity of your spouse for acts that had occurred prior to the marriage will not be considered by the Court as a ground for divorce.

When invoking a fault by the other spouse, you’ll need to demonstrate to the Court that the acts in question have resulted in the marriage and relationship to be intolerable for you.

The actions and behaviours can also take the form of collusion, connivance or provocation.

Also, the evidence will need to be persuasive and clearly establish the behaviour and fault in question.

The fault of a spouse will not result in a legal benefit of any kind

In Canada and in Quebec, the fault and behaviour of the spouse during the marriage will generally not affect the division of property, child support, parenting orders and so on.

However, there may be instances that the Courts may consider the behaviour and take that into consideration in the divorce judgment.

Fault-based divorce can of course be contested by the other spouse.

12- What is a summary divorce?

Simple divorce cases can proceed in a summary fashion

A summary divorce or a summary dissolution of marriage is a process by which highly simple cases will proceed with less formality and paperwork at the Court level to obtain a divorce judgment.

In jurisdictions where a summary divorce is offered, typically, you’ll see the following requirements:

• No children natural or adopted
• Short marriage duration
• No family residence, mortgage or real property
• No spousal support demands
• Certain value threshold of individual and marital assets
• No substantial joint debts

Summary process not available in Quebec

Although this process is not available in the Province of Quebec under the civil regime, there are more and more online summary service offerings provided by the Quebec government.

In Quebec, if a couple asking for a divorce has no children, little assets and no demands for spousal support and the like, the couple could file a joint divorce application where they can ask the Court to be exempt from the rules of the family patrimony.

Typically, in such cases, the Courts will authorize such an exemption unless there may be special circumstances that could prevent such an order to be rendered.

SARPA program in Quebec

For instance, the SARPA service allows parents to modify child support obligations through a summary process.

13- What is a no-fault divorce?

This is where the divorce ground does not invoke a fault of any kind

The no-fault divorce is the simplest and least adversarial type of divorce ground that you can invoke when filing for a divorce.

Separation for over 12 months is a no-fault divorce ground

In Quebec and in Canada, the no-fault ground is essentially the separation for over twelve months.

Proving that you have lived separate and apart from your spouse and you have no longer presented yourself as a couple for at least a year will be sufficient to satisfy the divorce ground requirement.

No-fault ground is easiest to prove in court

This is the simplest way of satisfying the divorce ground as you will not need to prove acts of behaviour that would demonstrate wrongdoing by your spouse.

The proof of having lived separate and apart is also much easier to make.

Typically, this evidence boils down to when you and your spouse have stopped living together in your family residence and have adopted a more independent life.

In some cases, although you may continue to live in the same house, you can nonetheless invoke separation over twelve months as you decided to stay in the same house due to financial constraints or you could not make the move in the best interest of your children.

The Courts will need to consider your reasons for not leaving the matrimonial home and decide if you have demonstrated that you have been living separate from one another although not apart.

14- What is an uncontested divorce?

Spouses have mutually agreed on all aspects of their divorce

An uncontested divorce is a divorce process where you and your spouse mutually seek a divorce as you have both agreed on all aspects of your divorce.

Joint divorce application in Quebec

In Quebec, we typically file a ‘joint divorce application’ when it comes to an uncontested divorce.

The joint divorce application is an application that is signed by both spouses.

In other words, there is one legal demand made to the Court and it is requested by both spouses.

An uncontested divorce is synonymous with an amicable divorce

When we say uncontested divorce, we can also say amicable divorce where the parties have reached an amicable settlement.

Where a joint divorce application is filed, it means that the spouses are in agreement to get a divorce and in agreement on all divorce terms right from the initial filing at Court.

The terms of the divorce are typically the division of property, children parenting time and arrangement, previously referred to as custody and access rights, alimony, child support among other things.

If the uncontested divorce presents a fair and equitable divorce terms, the Courts will most likely not intervene.

However, although you may file a joint divorce application, if the Court considers that there appears to be a lack of equity or an unbalanced division of assets and liability, the Court may request that the spouses come and testify to explain why such an arrangement was made.

The Court has a duty to ensure that the consequences of a divorce are fair and equitable and will have discretion in modifying terms of your mutual agreement if it does not consider it appropriate.

15- What is a collaborative divorce?

Alternative dispute resolution method for getting divorced

The collaborative divorce is an alternative dispute resolution method that couples can use in an attempt to reach an agreement on any contentious points in their divorce.

Mediation is the alternative process in Quebec

In Quebec, this collaboration is offered through mediators and a process called mediation.

In common-law jurisdictions, the collaborative divorce will be performed by trained lawyers in the collaborative approach and they will sign a statement whereby if the matter becomes disputed, they will not represent either party in Court.

Their objective is purely to support the couple to reach an agreement in a collaborative way.

Mediation process in Quebec

Now, in Quebec, in the course of mediation, you and your spouse will be making the decisions by yourselves.

Mediators by law are not authorized to represent anyone in Court.

Thus, by default, if mediation fails, then the couple will need to hire a divorce lawyer to assist them in the Court process.

The mediators or any other professionals involved in your collaborative divorce process, such as a social worker, financial specialist or anyone else, will not make any decisions for you but will guide and advise you.

Success of mediation depends on your willingness to make concessions

The success of mediation as a dispute resolution method relies on your willingness and openness to reach an agreement by being able to make concessions.

You will not be able to get the ‘perfect divorce’ but you will need to make decisions as to what’s the minimum viable solution that you can live with.

The mediation process is purely voluntary and you are not obligated to go through with it.

However, if you are able to consider an alternative dispute resolution mechanism to help untangle some legal disagreements, then it may be well worth a try.

Mediators are trained professionals in dispute resolution

The mediators are well trained to help the couple focus on what’s important.

They are trained to:

• Help couples find creative ways to reach an agreement
• Focus on the solution as opposed to the problem
• Help the couple speak their mind openly
• Ensure that the couple share adequate levels of information to make sound decisions

The collaborative divorce or mediation process is a cost-effective way to agree on the terms of your divorce and should be strongly considered.

Also referred to as mediated divorce

A mediated divorce is one where the couple have chosen mediation as an alternative dispute resolution method for reaching an agreement on their divorce terms.

In mediation, the mediator will act as a facilitator.

The mediator will help the couple share what’s on their mind and how they feel they can reach an agreement.

Every mediation session may be different as every couple is different.

In some cases, the mediator will guide the couple or suggest things for the couple to consider as an alternative option in reaching an agreement.

The mediator does not have authority to render binding decisions

The mediator however will never impose any decisions, it is always up to the couple to decide on the terms of their divorce.

Also, the mediation process is voluntary.

As a result, you cannot be forced to pursue mediation if you do not believe that you can reach an agreement or that it may be the best path for you.

16- What is an electronic divorce?

Divorce application filed electronically to court

With the evolution of technology, we are seeing more and more jurisdictions offer the possibility to their residents to file a divorce electronically with the Court, the ‘electronic divorce’.

This is not yet possible in the Province of Quebec but sooner or later, it will surely be a possibility.

Electronic divorce is offered in some countries like Portugal

For instance, Portugal currently offers two persons to file an electronic divorce when it meets certain conditions.

If the divorce is no-fault, uncontested, couple having no real property or children nor asking for support or alimony, then they offer an electronic and administrative method for filing the divorce application.

17- What is an online divorce?

Services offered by vendors to prepare your divorce papers online

Where in the past you needed to hire a divorce lawyer to prepare your divorce papers and application, today, many offer online divorce services where they will assist you in drafting your legal documentation at a fraction of the cost of a divorce lawyer.

Online divorce service offerings are becoming more and more popular as we tend to perform more and more activities online.

Can by a do-it-yourself type of service to prepare your divorce papers

A significant portion of the adult population in Canada and Quebec have access to the Internet either through their mobile phone or home desktop computers.

As a result, completing your own divorce papers and application through the use of an online service provider can help simplify your divorce application paperwork significantly.

If you have an uncontested divorce or an amicable divorce, you are a good candidate to consider the online divorce service offerings.

18- Divorce Takeaways

In Canada, the divorce is governed by the Divorce Act, a federal law applicable across the entire nation.

Each Province will have the powers to adopt their own divorce rules for managing the divorce court proceedings.

In the Province of Quebec, the Superior Court of Quebec is the court given legal jurisdiction to deal with family law and divorce in the Province.

In this article, we have looked at what is a divorce, the grounds of divorce, difference between a divorce and annulment, difference between divorce and legal separation in Quebec and also covered different type of divorce such as at-fault divorce, no-fault divorce, contested divorce, amicable divorce and so on.

Should you need any legal services with regards to your divorce, reach out to our divorce lawyers who are competent to support you. 

Our family law firm is well-positioned in family law to provide you a full range of legal services that you may need.

Be sure to read other related articles that we have written:

1. how is child support calculated in Quebec
2. safeguard orders in Quebec
3. property division in Quebec
4. parenting plans in Quebec
5. compensatory allowance and unjust enrichment in Quebec
6. child custody in Quebec
7. Child support in Quebec
8. family law in Quebec

And more…

In the meantime, we wish you the best of luck in your divorce case!

The post Divorce appeared first on FamilyLawyer.Zone.

You got married a few years ago and things are not going as well as you had hoped for.

You heard about marriage annulment as an option and you wonder if it’s the right recourse for you.

You wonder what is the difference between marriage annulment and a divorce?

In this article, we will look over marriage annulment and divorce as legal regimes and give you the highlight of their main differences.

After reading this article, you will know exactly if marriage annulment may be a suitable legal recourse for you or not.

In this article, we will look at the following points:

1. What is a marriage annulment?
2. What is the basis of a recourse for marriage annulment?
3. How long do I have to file a marriage annulment case?
4. The effects of the nullity of the marriage
5. Impact of the marriage nullity on children
6. Spousal support in the context of marriage annulment
7. Divorce
8. Does the court consider if a spouse was in bad faith?
9. Duties of lawyers and court
10. Some similarities with marriage annulment
11. Conclusion on Marriage Annulment vs Divorce

1. What is a marriage annulment?

Marriage annulment is essentially asking the court to cancel your marriage as if it never existed.

On the other hand, a divorce supposes that your marriage was valid and upon filing of a divorce application, you are looking to terminate the marriage as of that moment in time. 

From a legal point of view, marriage annulment is a very exceptional recourse.

The court will exercise great care in ensuring that the legal conditions necessary for the successful ordering of the marriage annulment are met, if not, marriage annulment will not be granted.

Fundamentally, you must ask yourself, were you tricked into a marriage or did your spouse make a misrepresentation about crucial facts that, had you known, you would have never gotten married in the first place.

There is an important distinction between choosing to marry the wrong partner or illegally getting manipulated into a marriage for instance.

2. What is the basis of a recourse for marriage annulment?

The basis of a recourse for marriage annulment is that you consider the marriage to be illegally formed or your consent was vitiated through the misrepresentation or deliberate manipulations on the part of your spouse.

In the province of Quebec, this recourse is founded upon the Civil Code of Quebec, a provincial law.

Article 380 of the Civil Code states the following:

A marriage which is not solemnized as prescribed by this Title and the necessary conditions for its formation may be declared null upon the application of any interested person, although the court may decide according to the circumstances.

No action lies after the lapse of three years from the solemnization, except where public order is concerned, in particular if the consent of one of the spouses was not free or enlightened.

This article therefore outlines both the legal conditions and timelines for filing a marriage annulment recourse.

3. How long do I have to file a marriage annulment case?

Legal Timeline

The Civil Code clearly states that you must file your annulment case within three years from the date of your marriage.

This requirement is pretty strict and so you must act within the allocated timeline failure of which you will not be able to take this recourse.

If you’ve been married to someone for more than three years even if you had sufficient reasons to cancel your marriage, your only option will be to file for a divorce, unless there was a violation of the public order warranting the nullity of the marriage.

Violation of public order

On the other hand, there is an exception if the marriage was solemnized for a cause that violates the public order.

For example, if your spouse has married you for the sole and only purpose to become a Canadian citizen, that could be a reason in violation of the public order.

In this case, you may feel that you have genuinely married the person to live a long life together while your partner was only interested in coming to live in Canada.

4. The effects of the nullity of the marriage

Spouse in bad faith

A spouse that is considered to be in bad faith must take back his or her property after the marriage is declared null.

Spouse in good faith

On the other hand, if a spouse was in good faith although the marriage was declared null will have the right to the liquidate of his or her patrimonial rights.

The parties are presumed to be in good faith when contracting their marriage unless the court specifically declares a spouse in bad faith.

Gifts 

With regards to gifts offered by one spouse to the other, if the spouse was in good faith, the spouse will be entitled to the gifts received in consideration of the marriage.

The court will have some discretion in reducing the value of the gift or declare the gifts as null as well depending on the overall circumstances of the case. 

5. Impact of the marriage nullity on children

Responsible for children

If the couple whose marriage is annulled have children, the law makes it clear that as parents they remain responsible in raising a child that may have been born during their marriage.

Evidently, the laws are highly protective of children and are designed to prevent harm to them in the event the marriage of the parents is nullified.

Challenges in raising your child

We do recognize that it may be a very difficult situation to live when you find out that the spouse you believed to be marrying for the rest of your life had tricked you in marriage or was pursuing an objective going against the public order.

In this context, there may be significant feelings of betrayal that will potentially spill into your parental role of raising a child you have both brought into the world.

The same rules governing custody and child support will then apply to the parents, the whole, in the best interest of the child.

6. Spousal support in the context of marriage annulment 

Court can award spousal support

The Civil Code of Quebec states that when dealing with a nullity of marriage case, the court must decide on matters relating to the children and particularly the rights of a spouse in good faith to receive spousal support.

The court also can consider the circumstances of the case and decide on how spousal support can be paid or reserve the right of a party’s spousal support if the other is unable to pay.

The law requires that the court consider the circumstances and reach an equitable decision given the specific nature of the case.

Reserving right to spousal support

If the court reserves the right of a spouse to receive spousal support, then that right will expire two years after the judgment if no spousal support is demanded.

At any time after the marriage annulment judgment, the court has the power to terminate spousal support whether it has awarded spousal support or had reserved a spouse’s rights to spousal support.

7. Divorce 

Dissolution of marriage

The Divorce Act outlines in article 8 that the court may grant a divorce to a spouse on the ground that there has been a breakdown of the marriage.

This entails that the spouses were married and both recognize the validity of their marriage and now intend to dissolve their marriage as they meet the legal grounds in getting a divorce.

Breakdown of marriage

The Divorce Act further clarifies that the breakdown of the marriage is established in the following events:

• The spouses have been living separate and apart at the commencement of the proceedings and separate and apart for at least twelve months on the rendering of the divorce judgment,
• The spouse against whom divorce application is brought has committed acts of adultery, and
• The spouse against whom divorce application is brought has treated the other with physical or mental cruelty of such a kind as to render the marriage and cohabitation intolerable.

8. Does the court consider if a spouse was in bad faith?

Unlike the annulment of the marriage, whether a spouse was in good faith or not is irrelevant with respect to the partition of the assets and division of the family patrimony.

On the other hand, in the context of an annulment case, a spouse that was in good faith can request his or her patrimony rights or be restituted in full.

The divorce institution in Canada and Quebec is considered a “no-fault divorce” where the marital faults of a spouse will not impact the rights granted to the spouses under the law.

9. Duties of lawyers and court

Another notable difference in cases of divorce as opposed to marriage annulment is that under the Divorce Act, both the lawyers representing the parties and the court have a duty to help reconcile the spouses.

Duty of the lawyer

The law imposes on the lawyer a duty to discuss the possibility of reconciliation and even the possibility to seek marriage counselling or guidance facilities to assist the spouses in achieving a reconciliation.

Duty of the court

The law furthermore imposes on the court a duty to verify the parties can reconcile and ensure that there is really no possibility of reconciliation before rendering a divorce judgment.

10. Some similarities with marriage annulment

Collusion of the spouses

When there is a violation of the public order, under the annulment of marriage regime, a spouse may ask for the nullity of the marriage even past the three year timeline to do so.

There is a similarity under the Divorce Act as it states that the court must dismiss the divorce application if the spouses were acting in collusion.

In Section 11(4) of the Divorce Act, collusion is defined as:

an agreement or conspiracy to which an applicant for a divorce is either directly or indirectly a party for the purpose of subverting the administration of justice, and includes any agreement, understanding or arrangement to fabricate or suppress evidence or to deceive the court, but does not include an agreement to the extent that it provides for separation between the parties, financial support, division of property or the custody of any child of the marriage.

Child support and custody

Both the divorce institution and annulment of marriage have clear guidelines with respect to child support and custody.

Under both regimes, the law sets out to protect the children of a marriage regardless whether the marriage is considered valid or not in the eyes of the law.

If you have a child during your marriage, then both parents will remain obligated to raise that child and ensure adequate maintenance is offered.

Spousal support

The Divorce Act outlines the objective sought when ordering or awarding spousal support.

Article 15.2(6) outlines the following objectives:

• recognize any economic advantages or disadvantages to the spouses arising from the marriage or its breakdown; 
• apportion between the spouses any financial consequences arising from the care of any child of the marriage over and above any obligation for the support of any child of the marriage; 
• relieve any economic hardship of the spouses arising from the breakdown of the marriage; and 
• in so far as practicable, promote the economic self-sufficiency of each spouse within a reasonable period of time.

As you can see, the law wants to ensure that spousal support is awarded to cover any disadvantages that a spouse may suffer economically as a result of the breakdown of the marriage.

It may be difficult for a spouse who did not work during the marriage to immediately go out and find a job.

As a result, the court will ensure that in such a case, the spouse can be awarded spousal support for a duration of time reasonable to be able to learn new skills or to go back in the job market.

Child support is priority

When considering an application for both child support and spousal support, the court must give priority to the child support demand first.

When child support is determined, the court can then consider the spousal support demand and come to a decision that will take the overall economic impact of the division of the assets, child support and the overall economic impact of the divorce on both spouses.

11- Conclusion on Marriage Annulment vs Divorce

As we can see, the annulment of marriage institutions along with the divorce institution have important differences but also many similarities.

If you are dealing with a breakdown of your marriage and feel that it was mainly due to incompatibility between you and your spouse, you may be looking towards a divorce.

On the other hand, if you feel violated into getting married for reasons that you discovered after you were married and feel that regardless of your compatibility, you are unable to continue living with your spouse, then you may be looking at an annulment of marriage case.

At the end of the day, getting an annulment is quite difficult.

For many, the distinction between a divorce and annulment is not clear.

You may have chosen a very bad partner to marry but the day you were married, you did give free consent to do so.

On the other hand, if you thought you were marrying a man while it turns out you married a woman, it is difficult to justify that your consent was freely given.

In this case, the nullity of marriage may be the more suitable recourse.

We hope that this article gave you some high-level understanding of the differences between divorce and annulment of marriage.

FamilyLawyer.Zone

The post Marriage Annulment vs Divorce appeared first on FamilyLawyer.Zone.

The post Divorce Legal Services appeared first on FamilyLawyer.Zone.