Getting a Divorce
Divorce can be a difficult matter, especially after a challenging separation. Divorce proceedings are often initiated after the couple has been separated for a period of time. If both individuals agree to the divorce and have resolved any issues at hand, such as child custody, the divorce may proceed uncontested. Sometimes, however, there are matters in dispute, such as issues of child and/or spousal support, custody and access of children, or division of property, that make proceeding with an uncontested divorce problematic. In Newfoundland and Labrador, a divorce is often held off until these matters are resolved. With the help of legal counsel, often the parties will each revise their positon in order to come to an agreement. A divorce order normally becomes final 31 days after being granted, which is after the appeal period has expired.
Do I Need a Divorce?For some people, getting a divorce is important as it brings symbolic closure to the relationship, especially if they have no separation agreement already in writing. A divorce is only necessary, however, in order to remarry. Some couples never take the steps of getting divorced once they have a signed separation agreement in place, usually obtained with the assistance of legal counsel. Often, it is when one of the partners wishes to remarry that a divorce is sought and obtained.
Keep in mind that, even if you have no intention of ever remarrying, being separated means you are still legally married. Although the impact of being married may not seem significant, there are some major differences between being separated and divorced that are important to be aware of.
How Is a Separation Agreement Different than a Divorce?
Although in Newfoundland and Labrador both a separation agreement and a divorce formally acknowledge a marriage breakdown, individuals have different rights if they are legally married than if they are divorced. The terms of a separation agreement can be changed by the spouses at any time without requiring the court’s approval. There is also no enforceability of a parenting schedule agreed to by the parents unless the agreement was made into a court order or a court decides otherwise. A separated spouse may also be able to receive insurance benefits under a married partner’s employer extended health benefit plan, depending on the insurance company’s policy. Other rights that a married spouse would have in the absence of a separation agreement stating otherwise are inheritance rights under intestacy laws, rights to a partner’s private pension plan at death, rights under the Family Law Act for an equitable division of marital property upon death, and legal liability for debts that are jointly held with a spouse. To avoid some of the complications of remaining legally married after separation, a written separation agreement should be obtained by the separated parties.
A couple’s rights are somewhat different once they are divorced. Rules of the federal Divorce Act, R.S.C., 1985 apply to divorcing couples rather than the provincial Family Law Act, RSNL 1990, which has provisions that apply to both married and common law couples. Under the Divorce Act, a same-sex divorce may be granted just as a same-sex marriage may be granted. After a divorce if a party wanted a change to an existing order, a variation order would be necessary. It is more difficult to make changes once a divorce order has been granted, especially if it was not appealed within thirty days.
Grounds for a Divorce
A divorce in Newfoundland and Labrador can only be granted in the Supreme Court, by a judge. In order to grant the divorce, a breakdown of the marriage must be established. This can be done by proving one of the following:
- The spouses having lived separate and apart for at least one year; or
- The spouse against whom the divorce proceeding is brought has:
- Committed adultery, or
- Treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.
If the spouses reconciled after separating but did so for less than 90 days then the period of reconciliation will not be considered to have interrupted or terminated the separation period. As such a couple who separated on January 1, 2016 but reconciled on January 5th for a period of 90 days or less could still get divorced as of January 1, 2017.
How Does a Contested and Uncontested Divorce Differ?
An uncontested divorce usually entails a quicker resolution (often granted within months instead of years), it is a less stressful process and it provides a greater degree of privacy and control (without detailed submissions made to a judge or a judge’s decision being made public). By contrast, a contested divorce involves conflict by one or both parties about various issues and it may require the court to decide issues that they cannot resolve themselves (e.g., a division of the financial gains from the marriage). A contested divorce may involve unreasonable claims being made by one or both parties or the parties may fail to negotiate in good faith. In situations where there is a history of abuse or violence, an uncontested divorce is not usually recommended until after the issues have been resolved through a fair legal process where the parties are represented by legal counsel.
How Can I Get an Uncontested Divorce?
In order to have an uncontested divorce, both spouses must agree to the divorce terms, at least one party must be a resident in the province for at least one year before applying fora divorce, and one of the grounds for divorce must be met (separation for at least one year, adultery or cruelty). Otherwise, the decision of whether to grant a divorce rests with the court.
Can a Divorce be Granted Before all the Issues are Resolved?
Normally, a divorce judgement encompasses all the terms of the divorce, though a court may grant a divorce before the couple has dealt with all the issues (e.g., the division of matrimonial property). A judge might not grant a divorce if arrangements have not been made regarding the support of children or if the parties intentionally mislead the court (e.g., saying they have been separated for 12 months when it has only been one month).
Contact Us Gittens & Associates
Our family law lawyers in St. Johns have tremendous experience with separation and divorce, including custody agreements in Newfoundland and Labrador. We see clients through some of the most challenging times of their lives. We can help you through the divorce process to get a fair terms in place for you. Contact us today to schedule your consultation at 1-888-592-7171.