Divorce

Many people think that a divorce is automatic if they have lived separate and apart from their spouse for at least a year, but while this gives them the right to obtain a divorce, a formal proceeding must still be taken.

 

Following Article 8(1) of the Divorce Act, a Court will grant a divorce on the grounds that there has been a breakdown of the marriage which is established by either:

 

(a) the parties have lived separately for at least one year before the divorce judgment and were living separately at the time the proceedings were taken;

 

(b) the spouse against whom the proceedings are taken either committed adultery or treated the other spouse with physical and mental cruelty.

 

Everyone has heard of contested divorces. Usually the reason that they are contested is either because there is a fight about child custody or a fight about finances.

 

At the time of divorce the couple's property is divided according to their matrimonial regime. If they are separate as to property, the other spouse may be left with much less and have to ask for the Court's intervention, for example by asking for alimony or a lump sum award or a compensatory allowance, depending on the circumstances. If the couple is in partnership of acquests, all the acquests have to be evaluated in order for the proper value to be partitioned. Certain assets can be difficult to evaluate, for example the value of a business, and sometimes experts are hired to give their opinion to the Court.

 

While child support is of public order and is established based on Child Support Guidelines, when it comes to spousal support the Court has to decide if a spouse has a right to spousal support and if so how much.

 

To read the Divorce Act visit the Department of Justice's webpage at:

http://laws.justice.gc.ca/en/D-3.4/

 

Partition of the Family Patrimony

 

Regardless of which matrimonial regime a couple is married under, all married couples are entitled to an equal share of the family patrimony upon breakdown of the marriage.

 

The family patrimony is composed of:

  • The residences used by the family;

  • The furniture used by the family to furnish or decorate the household;

  • The vehicles used by the family;

  • Benefits accrued during the marriage under a pension plan;

  • The earnings registered during the marriage under the Act respecting the Quebec Pension Plan or similar plans.

 

Certain property that would normally fall within the family patrimony may be excluded in certain circumstances, for instance property which a spouse received as a gift or bequest before or during the marriage.

 

Family patrimony can be complicated and it is important to verify what you situation is. For example, money borrowed against a family residence may not necessarily be deducted from both spouses' share if one spouse used it for example to invest in a business. It is important to consult an attorney.