Anyone who has gone through a divorce will likely tell you it was a difficult time for them mentally, emotionally, and financially.  Understandably, clients often seek legal advice at the first signs of trouble in their marital relationships.  One of the most common first questions is, "how do I get a divorce?"  Divorce – unlike separation/termination of a common-law spousal relationship – is governed by federal legislation called the Divorce Act.  There are many common misconceptions about what a couple and/or spouse must prove in order to obtain a divorce, but the truth is there is only one ground for divorce in Canada: marital breakdown.

What is “marital breakdown” and how does one go about proving that a marital breakdown has occurred?  The Divorce Act sets out three ways to establish marital breakdown:

1. Living separate and apart for one year

This is, by far, the most common ground for divorce and is the easiest to prove.  Spouses are considered to have been separated for one year when they have lived separate and apart for a period of 12 months.  Although the period of separation must be uninterrupted, a brief reconciliation during the year (up to 90 days) will not interfere with the calculation of time.  It is also important to note that a couple can be "living separate and apart" under the same roof as long as the intention to separate is clearly laid out (more about this interesting topic in posts to come!).

2. Adultery

If you choose to seek a divorce on the basis of adultery, you must establish that adultery occurred.  You must also swear that the adultery was not condoned by you, and that it was not permitted or invented simply as a means to obtaining a quick divorce. 

3. Cruelty

Finally, a divorce can be granted in circumstances in which your spouse has treated you with intolerable physical or mental cruelty.  If your spouse has treated you in such a way that it would be unreasonably or intolerable for you to continue to live with them, the Court may order a divorce on those grounds. 

This post is for information purposes only and should not be taken as legal opinions on any specific facts or circumstances.  Counsel should be consulted concerning your own situation and any specific legal questions you may have.

For more information and resources regarding McKercher LLP Family Law Saskatchewan visit www.mckercher.ca/familylawsask