Divorce
Divorce is the only way to put a legal end to an existing marriage (annulment, remember, means that the marriage was never valid in the first place). When the partners in a marriage obtain a divorce, they are once again in an unmarried state and are legally free to remarry.
According to the Divorce Act, 1985 , marriage breakdown is the only grounds for divorce in Canada. For marriage breakdown to be established, at least one of three things must have occurred:
- the spouses have lived "separate and apart" for at least a year,
- the respondent in the case has committed adultery, or
- the respondent has treated the petitioner with physical and/or mental cruelty.
Bars to Divorce
Collusion occurs when the spouses decide between themselves to deceive the court; for example, they might lie and say that they have lived apart for a year when, in fact, they have not.Sometimes a couple tries to get around the rules by which marriage breakdown is established and, in effect, cheat the process. This normally occurs when they want a divorce quickly but no adultery or cheating has taken place. When judges discover that this has gone on, they may choose to deny the application for divorce.
The three so-called bars to divorce are:
- collusion,
- condonation, and
- connivance
Condonation, by contrast, is said to have happened if one spouse has condoned, or forgiven, the other for some wrongdoing, like an adulterous affair. If this has occurred, the couple cannot then use the wrongdoing as grounds for divorce.
Finally, connivance involves one spouse's encouraging the other to do something that would be grounds for divorce, like committing adultery, simply so that a divorce will be granted.
If a judge determines that collusion, condonation, or connivance has taken place, it is possible that the court will insist that the couple live apart for a year rather than grant an immediate divorce. If, however, connivance or condonation is established but the judge still thinks it is in the best interests of the couple and their children to grant the divorce, the divorce may be granted.