Is it possible to prevent my divorce?

Learn what fault and no fault grounds have to do with you wanting to keep your spouse from divorcing you.

By Divorce Magazine
September 29, 2011
ON FAQs/Divorce Process

The Divorce Act defines the grounds for divorce. I would divide them into what can be called “fault” and “no fault” grounds.

The most common ground upon which a request for divorce is made is on the basis of “living separate and apart for at least one year immediately preceding the determination of the divorce proceeding.” This is basically a no fault provision. If it is proven that the parties have not resided together for one year or more, subject to my comments below, the divorce will be granted. Living separate and apart can include living separate lives while residing under the same roof.

The “fault” grounds arise from a claim that the spouse against whom divorce proceedings are brought has, since celebration of the marriage, either committed adultery or treated the other spouse with physical or mental cruelty such that continued cohabitation is intolerable. These grounds are rarely used today, given (a) the ready availability of the “no fault” grounds; and (b) the costs of such proceedings.

With respect to the fault grounds, there are many ways to “stop the divorce.” The fault grounds require the claimant to prove his/her assertion. Evidence is necessary, and if the claim is untrue or unproven it will fail. Further, the Divorce Act provides the presiding Judge with the discretion to refuse the divorce if he/she believes there has been collusion between the parties, or if there has been forgiveness of the conduct. Again, all of this leads to long and expensive proceedings.

With respect to both “fault” and “no fault” grounds, the Court is under a duty to satisfy itself that reasonable arrangements have been made for the financial support of any children of the marriage. In the absence of this evidence, the court will stay the divorce and not grant it until satisfied. This is the most common method for “stopping the divorce.”

Finally, it would appear that in some limited circumstances the court may have an overriding discretion to stay a divorce in situations where the granting of the divorce may severely prejudice one party (usually in a financial sense).

In almost all situations of marriage breakdown, the one year apart requirement will be satisfied, and even if fault grounds have been asserted that cannot be proven, eventually the no fault grounds of divorce will be satisfied and the divorce granted. So long as there are reasonable arrangements for the support of the children, it is a rare circumstance today where a divorce is stopped. For most litigants, their time, energy and legal fees are better spent in ensuring that a proper parenting plan is in place, and that a fair financial settlement is achieved.

Gary Stuart Joseph is a Partner and Firm Chair at Toronto family law firm MacDonald & Partners LLP.

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By Divorce Magazine| September 29, 2011
Categories:  FAQs

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