FAQ

 

  • May I automatically get a divorce if I have been separated for more than a year?

Many people think that a divorce is automatic if they have lived separate and apart from their spouse for at least a year. 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 or mental cruelty.

 

See our section on "Divorce" for more information.

  • Do I always have a right to one half of the family residence?

The family residence forms part of the family patrimony and as such couples are entitled to an equal share of a net value established by taking the market value of the family residence and deducting :

 

(a) Debts contracted to acquire, improve, maintain or preserve the property;

(b) The net value of the property included in the family patrimony that belonged to one of the spouses at the time of marriage and its appreciation in value;

(c) The amount contributed from a gift or inheritance during the marriage to acquire or improve property included in the family patrimony and its appreciation in value;

 

There are cases such as in (b) and (c) where even if you are a co-owner of the family residence you may not receive one half of the value of the family residence.

If one of the parties mortgaged the family residence to invest the funds this amount may considered as an advance against his or her share of the value of the family residence and the other party may receive more than one half of the remaining equity of the home.

 

However, it is important to consult a lawyer to know one’s right to the share of the family residence.

  • Is mediation a good thing?

Yes, it most definitely can be, provided you are well prepared and informed. Our office has counseled many people who have participated in mediation and who have settled their problems this way. Sometimes we only meet with a person once, sometimes we meet with the person several times if advice is needed on how to respond to the position the other spouse is taking. Feeling confident about their rights helps people negotiate affirmatively and work things out.

However, if one of the spouses is more vulnerable than the other, and the other is much more business-minded, then mediation may not work well.

For further information see our section on " Mediation Counseling".

  • Why does my neighbour get more child support than I do?

Your neighbour may be receiving more than you do for a number of reasons. The basic parental contribution of both parents is determined based on their disposable income and the number of children for whom child support is to be paid.

If both parents are living in Quebec, child support is established on an annual basis by taking into consideration the basic parental contribution to which both parents are jointly bound, the child care expenses, post-secondary education expenses and special expenses relating to the child, the disposable income of that parent in relation to that of both parents and custody time with the child.

Child support is determined by mandatory guidelines. Federal guidelines apply if a child's parents are married and one of the parents lives outside Quebec. Quebec guidelines apply if the parents both live in Quebec. If the parents are not married but one lives outside Quebec, the Quebec guidelines still apply.

 

See our section on " Child Support" for more information.

 

Finally, we underscore that the information in this website is general in nature and does not replace in any way a legal consultation, as each case is differen t. Do not hesitate to consult an attorney specialized in family law to obtain answers to your specific questions.