The Divorce Act provides that your spouse can obtain an uncontested divorce if there has been a breakdown in the marriage. A breakdown in the marriage occurs upon one of the following events:
(a) you and your spouse have lived separate and apart for at least one year immediately preceding the granting of the divorce and were living separate and apart at the commencement of the proceeding;
(b) you (the spouse against whom the divorce proceeding is brought) has, since celebration of the marriage, committed adultery or treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses. Case law has shown that you can be living “separate and apart” while living together if you and your spouse are living in separate bedrooms and are not having intercourse or intimacy as a married couple.
Therefore, your spouse can obtain an uncontested divorce after one year of separation. You can contest the other grounds of divorce — i.e. that you committed adultery or treated the other spouse with physical or mental cruelty — if you do not agree with the facts as presented by your spouse.
If you want to save your marriage, a better approach is to go to family counseling rather than trying to prevent your spouse from obtaining a divorce.
If you and your spouse have children, assets, and/or a high amount of income or assets, there may be such issues as child support, spousal support, property division, and equalization payment. If you are unable to save your marriage, these issues have to be resolved.
George C. Eyre is a family lawyer practicing in downtown Toronto.