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About Family Law

Divorce.  For many people, it's a hot-button word, evoking images of battles over kids and homes.  In law, it means getting an order from the court declaring that a marriage is over.  In British Columbia, only the B.C. Supreme Court has the power to grant a divorce.

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Grounds for a Divorce

There are two legal reasons for which you can get a divorce:

In general, the one-year separation is the best route.  It's relatively quick, easy, and inexpensive, and cannot be stopped by the other party.

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Irreconcilable Personal Differences ("no-fault divorce")

If, due to irreconcilable personal differences, you have lived "separate and apart" from your spouse for at least one year, either of you can file for divorce.  Usually this requires separate addresses; however, in some cases a couple may continue to live in the same house and still be able to show that they were living "separate and apart."  That is, they weren't living together as a married couple.

Even though you've separated from your spouse, you can try to salvage your marriage.  If you get back together for less than 90 days, and it doesn't work out, you can continue to count time for the one-year period from the date of the original separation.  If you're back together for more than 90 days, you have to start counting all over again when you separate.

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Marital Offences

An "offence against the marriage" by one spouse entitles the other to file for divorce. The offending spouse, however, cannot file.  There are three kinds of offences:

Adultery is when a person willingly has sexual relations with someone other than his or her spouse.  This is difficult to prove, unless the adulterous party admits it in court. Courts are extremely reluctant to accept evidence of adultery which would make a child illegitimate.

Physical cruelty is behaviour designed to cause deliberate pain or suffering to a spouse's body.  The harm must be "intolerable."  If a couple lives together after the abuse, the court will assume the cruelty was not "intolerable," unless the victim can show he or she had no opportunity to leave.

Mental cruelty is similar to physical cruelty, but refers to emotional harm.  Once again, the harm must be "intolerable."  In order to be intolerable, the pattern of psychological abuse must be severe and repeated.

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Disqualifications for Divorce

Even if you prove a marriage breakdown, a court may refuse to grant a divorce if you committed one of the three Cs: collusion, connivance, or condonation.

Collusion is when you deceive the court. For example, if a couple agrees to lie about how long they have been separated, that is collusion.

Connivance is when you encourage your spouse to commit a marital offence so you can get a divorce.

Condonation is when you have already forgiven a marital offence, but bring it up again only for the purpose of getting a divorce. For example, if a wife learns about the husband's adultery but decides to ignore it, and continues to have sexual relations with him, that may be considered condonation.  The adultery may no longer be grounds for evidence.

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Separation Agreements and Annulments

Besides a divorce, the court can also order a judicial separation, formally recognizing a separation agreement.  This means you no longer live together and may divide the family assets. Procedures for separation can be as long and complicated as for divorce.  But since you're technically still married, you cannot re-marry without getting divorce.

In an annulment, meanwhile, the court declares the marriage never existed in the first place.  These cases often turn into long, bitter, expensive fights about sexual issues. Courts rarely grant annulments because  1) any children are instantly deemed to have been born outside of marriage, and  2) a no-fault divorce is easier and quicker.

A divorce is the most common procedure for ending a marriage.

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Dividing Property

Under the B.C. Family Relations Act, each spouse is entitled to half the total value of all family assets.  There are exceptions to this rule, and the parties often disagree on whether an item is a family asset.  In general, a family asset is something owned by one or both spouses, and used by a family member for a family purpose.

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Custody and Maintenance

A parent can get sole or joint custody of a child, or merely rights of access, if any. The courts consider, "What is in the best interests of the child?"

There are two types of maintenance: spousal support and child support.  A court determines these amounts based on government guidelines, the income and needs of each party, and any special circumstances.

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Dividing Family Property | Maintenance Payments

More questions? Phone us at (604) HELP-LAW.

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Legal disclaimer: The information provided on Lawyers-BC.Com is not intended to be legal advice, but merely conveys general information related to legal issues commonly encountered.  Your access to and use of this Web site is subject to additional terms and conditions.

This page last updated:  September 24, 1999
© copyright 1999 Lawyers-BC.Com Services Ltd.