Under S.8 of the Divorce Act , a divorce can be granted if there has been a breakdown of the marriage as follows:
- The parties have lived separate and apart for at least 1 year;
- One party has committed adultery; or
- Has treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.
Should the grounds of the breakdown of marriage exist then the Court can grant a divorce.
Even if there are collateral issues involved in the case such as support, custody, division of property, a party can bring on a motion to sever the divorce from the collateral issues. The Divorce will be granted and the parties can continue to litigate the other collateral issues.
A party can stop the divorce proceeding at any time by entering into Minutes of Settlement and settle all the outstanding issues.
If one party wants to stop the proceeding by filing a Notice of Discontinuance, it can only be done with the consent of the other party.
Should both parties decide to reconcile then they can both consent to the discontinuance of the action.
Should I move out of the matrimonial home?
A major difference between marriage and common-law relationships is the concept of the matrimonial home. A matrimonial home only applies to a marriage relationship. A matrimonial home is considered a home that the married couple ordinarily occupies as their family residence at the time of separation.
A spouse may have an interest in the said matrimonial home notwithstanding the fact that their name is not on title and they are not an owner.
Whether a party moves out of the home after separation, does not affect their right to an interest in the said house.
There can be reasons to move out of the house such as a fear of abuse from the other spouse or fear that the other spouse may lay frivolous criminal charges against them.
Just because a party moves out does not relieve that person from any obligation arising from their ownership in the house.
If their name is on title and on the mortgage they would still have an obligation to contribute towards the carrying costs of the house including mortgage, taxes, insurance etc. This cost could be off-set by seeking occupation rent that can be claimed from the party that is staying in the house.
A party may decide that they want to stay in the house instead of moving out (especially if there are children already in school in the area). If they do not want to continue to reside with the other party then they could bring on a motion for exclusive possession of the house if they are able to provide adequate reasons for such a court order, such as abusive conduct by the other party.
Stanley J Potter is a Toronto-based family lawyer offering legal services for divorce and separation, child custody and co-parenting applications, child support, spousal support and other family law matters.