Isaac Hill- Published February 2, 2023

When married couples find themselves at the unfortunate end of their relationship, the first thing they may want to do is get a divorce and walk away from their marriage and put that old life behind them. 

There is only one ground for divorce. There must have been a “breakdown of the marriage”, and the courts will know there has been a breakdown in marriage when one of the three factors set out in s. 8(2) if the Divorce Act is met. Those factors are listed here:
(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,
(i) committed adultery, or
(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

The most common ground for divorce is to live separate and apart from your ex-partner for a year, and it is the court’s discretion whether or not to grant a divorce under one of the other two factors in s.8(2)(b). The section gives no preference to one factor over another, although in practice the court may grant a divorce on the basis of the spouses having lived separate and apart for one year, even though other factors of marriage breakdown are present. 

If you are applying for a divorce under s.8(2)(b), the onus rests on the asserting party to establish prejudice sufficient to warrant the court to exercise its discretion.
A notice of family claim for divorce based on a one-year separation may be filed at any time while the parties are living separate and apart (Divorce Act, s. 8(2)(a)), and doing so permits interim relief to be claimed. However, the application for a divorce order cannot be made until the parties have actually lived separate and apart for a period of at least one year.

The term “separate and apart” has been interpreted liberally, and spouses may live “separate and apart” while continuing to reside in the same home provided at least one of the spouses intends to separate and takes some action consistent with that intention. The court may look at the pre- and post-separation behaviour of the parties to determine the date of separation.

If you need assistance with filing your Notice of Family Claim, seeking advice on whether or not you have grounds for a divorce, or getting some interim relief while waiting for your divorce, we would encourage you to contact our Portside Law office and our skilled lawyers would be happy to help. We operate throughout the lower mainland including New Westminster, North Vancouver, Surrey, Abbotsford, Richmond, Vancouver and Chilliwack. Please reach out to us at 604-545-6145 or office@portsidelaw.ca to schedule an appointment.

Disclaimer – By contacting Portside Law Corporation through email, phone or direct message does not establish an attorney-client relationship. An attorney-client relationship is formed once both parties agree in writing to such a relationship. The information found in this document is of general nature and is not intended to be legal advice. Please contact our office to speak further about any particular legal question you may have.