Difference Between Fault And No-Fault Divorce in Canada
A divorce is never easy. The person you were once planning a life with is no longer going to be there in that way. For many couples, it’s a devastating circumstance and one that is only complicated in the differences that exist between a ‘fault divorce’ and a ‘no-fault divorce’.
To end a marriage, a court proceeding is required. Although you can live apart and maintain separation, to legally end a marriage, one has to undergo the legal formalities which do necessitate the involvement of the courts.
If you are married and want a divorce, it is important to understand how a fault and no-fault divorce in Canada are different. A ‘fault divorce’ can be very confrontational and requires a proving of wrongdoing as grounds for divorce. A no-fault divorce in Canada, however, does not necessitate any evidence that wrongdoing has occurred. Let’s take a closer look at what both mean.
What to Know About Fault Grounds for Divorce
To terminate a marriage and obtain a divorce, the courts need a reason. The reason provided allows the courts to issue an order to end the marriage and dissolve the partnership, granting the divorce.
The process for getting a divorce in Canada is managed by the federal Divorce Act which necessitates proof for a ‘breakdown of the marriage’. The courts accept three circumstances under which a divorce can be granted. They are adultery, physical or mental cruelty, and/or if you’ve been living separately for at least a year.
Adultery and physical or mental cruelty are fault grounds for divorce. They also require proof of wrongdoing on the part of the spouse intending to end the marriage. A fault divorce tends to, unfortunately, take longer, be more difficult on both parties, and is more expensive. One has to effectively argue that they’ve been wronged and that the other party is at fault. This is typically where a lot of conflicts and emotional harm come into play. This is why a simple separation is preferred by a lot of couples.
Can you change from no fault to fault divorce – yes, technically. You can choose to modify a divorce application to include fault grounds, however, this does not serve to provide you any advantage. In fact, it can be quite the opposite and be an invitation to engage in a longer complaint around the terms of the divorce. You will only extend the time and effort required to conclude the divorce proceedings, although it is certainly within your right to add fault grounds into your divorce if it does so apply and is provable.
What to Know About No-Fault Divorce
A no-fault divorce can be granted when there is evidence that you and your spouse have been separated for at least a year. At his juncture, the courts can deem marriage to be over and divorce documents to be the final step in terminating the legal agreement between spouses.
Most divorces in Canada are granted as no-fault and there are many reasons why. For couples, a no-fault divorce is faster to process, easier to understand and undergo emotionally, and is less costly than trying to prove fault. No-fault divorces can be used on joint applications or non-contested divorces as well, helping couples avoid having to present any evidence or pay a divorce lawyer to guide them through what can be a fairly complex process otherwise.
Another benefit to no-fault divorce in Canada is that it limits the ability of a respondent spouse to challenge the divorce application. If the applicant can satisfy the courts’ need for grounds for divorce by establishing a minimum 1-year separation, the other spouse cannot intervene and declare the evidence to be untrue, delay the divorce proceedings in any way, or have the grounds to argue that divorce shouldn’t be granted. It is the simplest way to obtain a divorce, by far.
How to apply for a no-fault divorce requires you to have proof of the separation. Separation can occur when a spouse moves from the matrimonial home, if one of the spouses has an independent residence elsewhere, and it’s even possible when both spouses have continued to reside in the same home.
To the latter, a divorce is not necessarily always a battle. Some couples may choose to remain friends after the conclusion of a marital partnership. Furthermore, due to financial or familial circumstances, it can be difficult for spouses to relocate or take on another residence. So long as there is proof of a definitive separation, cohabitation can still occur and not necessarily be an impediment to having a divorce granted.
Understandably, there is far less confrontation with a no-fault divorce. Unlike with fault grounds, you do not need to prove your spouse did anything wrong nor do you or them have to defend yourselves against the other’s claims.
How Fault And No-Fault Divorce in Canada Can Impact Financial And Child Custody Issues
A divorce made on fault grounds means an applicant has to prove the conduct of their spouse resulted in a breakdown of the marriage. Furthermore, claims of adultery and physical or mental cruelty must be proven to have occurred during the marriage and not before. The evidence establishes that continuing to live together would have been impossible given the spouse’s conduct. This evidence must also be persuasive in design and contain dates, locations, and as much detail as you can reasonably provide.
The financial impact of fault and no-fault divorce in Canada is clear. A no-fault divorce is more affordable and doesn’t even need to involve a lawyer. You can file the documents and pay the court fees, however, not much more is needed. For a fault divorce, you will most likely need to hire a lawyer to work on your behalf. The time, effort, and financial investment around a fault divorce in Canada are higher because you are seeking an outcome based on evidence the other party may not agree with and may wish to present different evidence.
Fortunately, child custody issues are unaffected by whether it’s a fault or no-fault divorce in Canada. Any claims made in court to suggest a fault divorce will not impact child custody arrangements and the arguments or arrangement proposed around any custody, child support, access to children, or even property division.
Ask A Divorce Lawyer For Help
If you are going through a fault or no-fault divorce and aren’t sure about the next steps with your divorce proceedings, talk to a divorce lawyer in Toronto. Not only can they help answer your questions and provide guidance on how to end your marriage on your best terms but a divorce lawyer can also consult on any financial or child-related issues tied to your divorce, helping you negotiate those with your spouse before it reaches the courts.
