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Divorce
My husband was commiting adultery in our marriage....left the marriage moved out of the house to be with this other woman....now he is bringing her around our children on thier outtings and having her overnight when they are there.....is there any way i can legally get a restraining order or charge her.....i want to keep her away from my children so she has no contact with them what can i do? we are not even legally seperated yet.....? (by C of Abbotsford, BC) Adultery - in the eyes of the law - is only relevant as a ground of divorce. It may come into play in custody considerations in terms of the moral fitness of the parent to have custody, but this RARELY happens. The courts in general will not take adultery into account except as to divorce. I understand that you're likely feeling very hurt by your husband's behaviour and are probably very apprehensive about your children having contact with your husband's lover, however unless there is some reason why she should be kept away from your children, there is little you can do about it. If you have some sort of evidence which shows that this woman is harmful to your children's well-being, or evidence that exposure to her is harmful to your children's well-being, you cannot keep them from her. If you DO have that sort of evidence, you may be able to get a sort of restraining order which would stop your husband from having this woman around when the children are with him. On the other hand, common sense says that it is impolite and probably imprudent for your husband to introduce the children to his lover so quickly. To my way of thinking - and this is not a legal opinion, just my take on things - your husband is being a bit thoughtless in introducing them to this new person so soon. Still, unless you can somehow show that your children are being harmed by her in some way, emotionally or psychologically, there isn't much you can do about it. Secondly, there is no "charge" you can bring against your husband's lover; there was such a criminal charge in the early part of the last century, but it has long since been done away with. Finally, there is no such thing as a legal separation. Once you're living apart from your husband and either one of you, or both of you, have the intention of ending the relationship, you are separated. There's nothing "official" or "legal" about it. Click here to go to the top of the page. I was married in Ontario 4 years ago. My husband and I are BC residents. Can we do a BC divorce or do we do an Ontario divorce? (by J of Vancouver, BC) As long either you or your husband have lived in BC for at least one year, you can get your divorce here rather than in Ontario. Click here to go to the top of the page. Legally speaking, what can happens if a married man that has moved out of the house for a period of almost 2 years moves in with a girlfriend? Is this adultery and grounds for divorce? Can the wife take him to the cleaners? (by L of Ottawa, ON) The answer to your question is this. If a married man starts to live with another woman, he will be committing adultery if he and the other woman are having sex. He is still married and sex with a woman other than his wife is still adultery, and will be until he is divorced. Yes, this adultery can be a ground of divorce, however the court will likely prefer to grant a divorce simply on the basis of separation in excess for one year, since he's been separated for at least two years already. In general, where separation is available as a ground of divorce, the court will usually choose to rely on that as it doesn't have the adverse moral implications of adultery or cruelty. The fact that he is committing adultery is NOT a means to "take him to the cleaners," as you put it. So-called "marital offences," like adultery, are not taken into account when determining questions like how assets should be divided or how the children should be looked after. Click here to go to the top of the page. I'm a Canadian citizen, a Vancouverite, living in Seoul, South Korea, and I'm seeking a divorce from a Korean woman who is refusing to grant me a divorce. The marriage is legal in both countries (Canada and Korea), since it was processed through the Canadian Embassy in Seoul. What can I do? I have heard something about a "Desk Order Divorce," but as I understand it, that means that I would have to live in Canada for a year (an impossibility, since I have a very good job that I am loathe to leave). Is it possible that she can keep me chained to a marriage that I don't want to be in? Is it possible? I'd like to get out of this sterile marriage and get on with my life. What can I do? (by S of Seoul, Korea) First, a marriage which is validly performed anywhere outside of Canada is valid here, so long as it meets certain criteria. It wouldn't matter where your marriage was performed, so long as it was valid there. Anyhow, your problem is this: you've got to be ordinarily resident here for one year to get a divorce here. A Canadian divorce is valid anywhere, just as a Canadian marriage would be valid. On the same note, a Korean divorce will be valid here, so long as you've lived there for a year. In fact a divorce anywhere will be valid in Canada, so long as it is properly performed under the rules of that country and you've lived there for at least a year. That seems to be that. You can either live in Korea for a full year and then get a Korean divorce, or, if you want, come back to Canada and live here for a year and get a divorce. If you'd like to stay in Asia, but don't want to be so close to your wife, move somewhere else and stay there for a year. Click here to go to the top of the page. I currently live in BC and have for more than 2 years. My wife and 2 children reside in Alberta and have been there for approx. 11 months. Where do I file for divorce, BC or Alberta? Under which court must I file, Provincial or Federal? As well, if my wife and I sign a Separation Agreement and I would like to have it filed, which province and court do I file it in? (by R of Prince George, BC) Well, it seems to me that you ought to file in BC. This is the cheapest course of action for you (since you can file in the court closest to you rather than having to trek out to Alberta). Further, only you meet the Divorce Act requirements of having lived in your province for at least one year. You must file in the BC Supreme Court. If you wanted to file a Separation Agreement in court, you can file in either or all of the provincial or superior courts of BC and Alberta. Since the usual reason one files a Separation Agreement is to enforce the agreement through the court system or an agency like FMEP, you will have to file it here to enforce it here, and file it in Alberta to enforce it in Alberta. Click here to go to the top of the page. I have recently moved to the UK with my new partner, my husband resides in BC where we were married. We have been separated for 7 years. He is wanting to apply for a divorce in BC, however, is stalling due to the child support guidelines not currently being met, and he will end up paying more if going by the guidelines. Do the guidelines apply if the children live in the UK with me? We currently have joint custody, although he never assists on any decision making with the children, and has access in the summer and at Christmas time. Can I apply for sole custody given the limited parenting that he has, or chooses to have? Where do we divorce? (by H of London, England) Unless you've lived in the UK for at least one year, you will have to get your divorce in British Columbia. Yes, the Guidelines do apply to your husband even though you and the children are living in the UK. He may not like that, but there is a strong case to be made that the Guidelines are the appropriate base amount of child support he ought to pay! There are ways around this, however they're not likely to apply in your circumstances. You've also asked about changing the present custody situation. Frankly, I'd leave things as they are. Why spend the money changing the order if he's an absentee parent anyway? Unless you have a serious concern about custody passing to him instead of your boyfriend in the event of your death, I can't see any reason for you to spend the money on a lawyer to make that application. Click here to go to the top of the page. What is required to sue for divorce on grounds of adultery? (by N of Grand Forks, BC) Well, for one thing, proof of the adultery. That's about it. The proof can be evidence such as a pregnancy, a witness who saw the adulterous act, or the admission of the party who committed adultery. However, you should be aware that when a divorce can be granted on the ground of separation, it will. Further, since the only "advantage" of that ground of divorce is eligibility for a divorce right away, if you're going to be looking for other relief, like support or the division of assets, you may just as well proceed on the ground of separation. It's a heck of a lot more pleasant than doing it based on adultery. Click here to go to the top of the page. How do you get a divorce if you are American citizens and the parents of the bride got you married in Canada to protect their daughter's social security payments. This was in May, now the daughter has left the marriage and moved to an unknown address in Washington with her parents. Our son who lives in Oregon wants a divorce and needs to know how to go about it? (by R of Gresham, OR) Under Canadian law it doesn't really matter where you married or where you live now. I'm fairly sure, though I really don't know, that the same rule applies in the US. The question of how and where and when to divorce all depends on the jurisdiction of the court to make the divorce order. In Canada, the rule is that you must have lived in one particular province for at least one year before the courts of that province have the jurisdiction to make a divorce order. You should check with an attorney in your neighbourhood to find out what the residency requirement is for your son to fall within the jurisdiction of the Orgeon courts. Finally, the fact that your son doesn't know where his wife is shouldn't pose too much of a stumbling block. In Canada, so long as you meet the jurisdictional requirements as well as the criteria for a divorce order (in your son's case this would likely be separation), you can apply for a divorce. You will, however, have to ask the court for an order that you be allowed to "substitutionally" serve the wife with notice of the divorce action, meaning that you'll have to ask for an order allowing you to serve her in a manner other than personal service. This could include, for example, posting notice of the action in the court registry for a certain period, or running a newspaper classified ad notifying her about the action. There will be a bit of a delay, but once the requirements of the substitutional service order have been met, you can continue with the divorce application. Click here to go to the top of the page. I would like to know if I can include this as my reason for wanting the seperation. My husband had given me a sexually transmitted disease when I was pregnant with our second child. Can this be included in my reason for wanting the seperation? If not, why? (by C of Inuvik, NT) Firstly, you don't need a specific reason for wanting a separation. Any reason will do, if you're unhappy in your marriage and want to end the relationship. What you do need a reason for is your divorce. There are three "grounds" of divorce, reasons that the government considers to be good enough to grant a divorce: adultery, mental or physical cruelty, and separation for a period of one year. While your husband giving you an STD is an absolutely shitty thing of him to have done, it doesn't really fit into any of these grounds of divorce. Even the ground of cruelty really doesn't quite fit, since that ground contemplates violence (although you might be able to try an shoehorn the STD into this ground, which would be a very interesting argument to make). In a nutshell, if you want to separate and consider your marriage at an end, fine, do it. When the time comes for you to get a divorce, I suspect that you're going to have to wait a year and ask for a divorce order based on separation. Click here to go to the top of the page. My friend is wanting to divorce her husband. She has been sleeping in a seperate bed for about 6 months and has not had sex with him for about 7. Can these dates be used as commencement dates for a one year seperation? (by M of Calgary, AB) I think the separate beds date is a better date for separation than the date she last had sex with her husband. In any event, the really important factor isn't when she started sleeping in a separate bed or when she stopped having sex with him. It's when she decided that the relationship was over. Not having sex and sleeping in separate beds are factors that indicate that she decided the relationship was over, but they're not conclusive of the fact that the marriage had broken down. The key idea of separation as a ground of divorce is the intention to end the married relationship. Things like doing separate chores, preparing separate meals, opening separate bank accounts, sleeping in separate beds and so forth are all indications that the relationship has broken down. The "date of separation" for the purposes of the Divorce Act can predate some or all of these indications. Click here to go to the top of the page. I am married to a man from New York. I want a divorce. Do I have to go there and get it because I was married there and the marriage licence was purchased there? Do I have to go by USA divorce laws because I was married there or can I divorce in Canada without him knowing it? (by S of North Bay, ON) You can get divorced here in Canada, as long as you've lived in Ontario (I assume you live in North Bay, Ontario) for at least one year before you begin the divorce action. So long as you've lived in one province for at least one year, you can apply for a divorce in that province. It doesn't matter whether you were married in the USA, Manitoba or Thailand. Either way, you will have to give him notice of your intention to get a divorce. In Canada, you must start a legal action, a law suit, to get a divorce, and as the defendant in your action, your husband must be properly served be notified of the law suit. Click here to go to the top of the page. If a wife and husband are married from 1995, and then were separated for two years 2001-2003, and then reconciled and started to live together again in 2004, from which moment they are considered to be married, from 1995 or 2004? (by A of Vancouver, BC) You are considered to be married as of the date of your marriage in 1995, assuming that you're not referring to a common-law relationship. The thing is, if you never get a divorce, your married status never changes, despite the period of separation from 2001 to 2003. Click here to go to the top of the page. How can I grant my divorce order first? I have separated with my ex-wife for more than 2 years. I started divorce proceedings in January, 2004. I have my first court date on April 20, 2004. Now I want to marry again. But my ex-wife is unwilling to let go and is asking much for child and spouse support. I want to grant my divorce order so as to marry my fiancee. But my lawyer said the divorce order can't be granted first. What can I do? How can I grant my divorce order first? (by C of Cyberspace, BC) First, I want to clear up one point. You don't grant a divorce, the court does. What you do is ask the court to make the order, and hope that the court grants your application. Yes, it is possible to get a divorce before everything else is dealt with. Typically, people want a divorce when they're planning on remarrying, like you are. What you're asking for is a divorce and the general adjournment of all other issues, and you can get your divorce by simply making an application to the court. Your lawyer is right; the court generally prefers to hold off on the divorce until everything else is dealt with, but you can still get a divorce earlier than that if there is some urgent reason why you have to get it now rather than later. Click here to go to the top of the page. I got married in June 2004, and I moved back to mexico. I'm not Canadian citizen. My husband is Canadian, so, I wanna get a divorce. Our marrige never has intercourse, so my question is can we get cancellation of marriage or do we have to wait one year to get a divorce? (by A of Vancouver, BC) Unfortunately, if you want to get divorced, you'll have to wait for the one year period of separation to pass. Not having sex is only a reason why a court might cancel a marriage if there is some physical or psychological reason why sex is impossible. If it's just a case of you and your husband not getting along or not wanting to have sex, that isn't good enough to cancel your marriage. Click here to go to the top of the page. My husband asked me for a divorce and we have been amicably seperated for several months. We will be seeking an uncontested divorce once our year is up. I am involved with someone else, who's buddy has told him that my new partner can be sued by my ex for "breaking up his marriage". Is this true? (by B of Burnaby, BC) Is it true that your new partner can be sued by your ex for breaking up the marriage? Absolutely not. I do wish that people would get more legal advice from lawyers than buddies. Way back in the dawn of time (actually, more like 30 years ago), a spouse could sue someone for "enticing" the other spouse to leave the marriage, "loss of consortium" (meaning lack of sex), harbouring the spouse who left the marriage, and so on and so forth. These old common law principles have been expressly overruled by the provincial Family Relations Act. Curiously, some of them are still on the books in Alberta, if you can believe it. The only relief left that a spouse can claim against someone who's had an affair with the other spouse is for an order that the person pay the spouse's cost of the divorce action, but only if the divorce action is based on adultery. See s. 123(4) of the Family Relations Act. I have never heard of a case within the last twenty or so years in which the party to adultery was ever sued for costs. In any event, you're separated from your spouse. Your new relationship is irrelevant to your marriage and the uncontested divorce application you'll be making on the anniversary of your separation. Click here to go to the top of the page. I have recently seperated from my husband and have started a new relationship. My ex found out about this new relationship is saying that he can take my children from me, refuse me sposal support and whatnot on the basis that he believes I had an affair during the marriage, is this true? (by J of Red Deer, AB) The short answer to your question is this: no. Technically, while you are still married, having sex with someone else constitutes adultery. However, in your case the relationship happened after you separated from you ex. While your actions still constitute adultery, they won't be adultery for the purposes of getting a divorce. Frankly, no one except the pope and your pastor might give a hoot that you had sex with another man after your marriage came to an end an you separated from your husband. As to your husband's threats, whether you had your relationship before your marriage or afterwards has absolutely nothing to do with questions about the care and control of the children or whether or not you're entitled to spousal support. Those are entirely separate questions, to which the question of your relationship has no bearing at all. Click here to go to the top of the page. How can I deal with custody issues when I know my husband has alcoholism? As time has passed that my husbands's drinking and attitude toward me borders on cruelty. I can tell you of a number examples of problems related to his drinking, but my questions are: How easy would it be to divorce him on grounds of cruelty? It would probably go uncontested. How much does a divorce as such, cost, if uncontested? Do these issues come into play when assessing his ability as a parent? (by J of Kamloops, BC) Your husband's alcoholism doesn't stop you from "dealing" with custody and access issues. Go right ahead and deal with them. His alcoholism will, of course, be a factor in determining whether he is capable of sharing the rights and obligations and exercising the sound judgment required of someone who shares custody and guardianship of children. His alcoholism will also be a factor in the extent and nature of the access he should have. If he drinks when he's around the kids, his access could be on the condition that he not drink during the his time with the kids or for a 12 hour period prior to his time with the kids. Essentially, your husband's drinking problem is relevant to his capacity and fitness to parent. That is why it bears on the issues of custody and guardianship. As long as you can establish that your ex’s drinking constitutes abuse — that you suffered some mental or physical harm as a result — then you might be able to rely on that as a ground of divorce. I am a bit skeptical of your chances of success on this point. At the least you’d need a psychologist's report that you suffered from this purported cruelty. I fully realize how difficult and exasperating his drinking was for you, but you still must establish that it constitutes cruelty. Frankly, most folks just rely on separation as a ground of divorce. It’s simple, it’s cheap, and all it means is that you have to wait a year. You can do your own uncontested divorce for about $350 in filing fees, plus another $20 to buy the Self-Counsel Press do-your-own divorce kit. I imagine that most lawyers would charge between $1,000 and $1,500 to do it for you, since your divorce is a bit complicated by the fact that you’ve got kids. The grounds for divorce are irrelevant to anything except for divorce. The substance of your complaint, his drinking, absolutely has a bearing on his capacity to parent. Note that you needn’t claim cruelty as a ground of divorce to raise his alcoholism as an issue with respect to parenting issues. Click here to go to the top of the page. After dating for only two weeks, my girlfriend and I decided it would be great to be married. We are both mature professionals. We have now been married for 5 weeks and we have consummated our marriage but we never lived in the same house. We have no desire to allocate any of our assets, as we both already own our own homes, etc. We have no children together and I have only met her daughter a few times. I now realize how irresponsible it was to rush into marriage and I am wondering if we might be able to get an annulment or if we will need to get a divorce. If we do need to go the divorce route how long would we need to wait? (by R of Langley, BC) I'm sorry, but annulments are only available in a few special circumstances, auch as marriages occasioned by fraud or an inability to have sex. I doubt very much that it's available to you. You and your wife may have acted impulsively, but you knew what you were doing. The only way to terminate your marriage is divorce, and the ground of your divorce will be separation for a period of at least one year. What I'd suggest is that you and your wife separate immediately. You and she should discuss the matter and decide to end the marriage, and then start living as if your marriage is over. Once the one-year period has expired, you can get a divorce through the desk-order process. I should mention that all you really need is the divorce order. You don't have to make any claims with respect to the division of assets or support or whatnot. Click here to go to the top of the page. I have been married 12 years. I seperated from my husband because he became so abusive towards me and started binge drinking. I became tired of his antics and asked him to leave. I found out about five months after we separated that he was behaving so violently because of his feelings of guilt and shame. He was too cowardly to leave our marriage. He had started an affair with my best friend of 30 years eight months before we separated. They say they did not have sex until after he and I had separated. They say they only kissed and fondled but did not have intercourse until after we had separated. They say this is not adultery. Is this adultery or not? Secondly, this woman was my dearest, closest friend/confidante for most of my life. Can I not charge her with anything? She was asking me questions regarding our marriage, all the while undermining my marriage and fooling around with my husband. They have now moved in together. Can I legally charge her or sue her, DO something? She pursued her best friend's husband for 8 months before winning him! (by C of Nanaimo, BC) You have my sincere sympathies. As to the conduct of your husband and former friend, almost all of the old common law rules that would have allowed you to sue your friend for the breakdown of your marriage have been rescinded. Prior to about 1972, you would have been able to sue your friend for "enticing" your husband to leave the marriage and possibly for "harbouring" your husband. The 1972 Family Relations Act effectively overruled these forms of relief. Now, all that's left is set out in s. 123(4) of the act. That section says that where adultery is the ground on which a marriage was dissolved, the person with whom the adultery was committed can be ordered to pay all or some of the cost of the proceeding that led to the divorce order. In a nutshell: her conduct was appalling, but there's nothing you can do about it at law. I don't think there's anything in the Criminal Code about this issue either, but it wouldn't hurt for you to check. Does the kissing and fondling count as "adultery" for the purposes of the divorce act? Honestly, I'm not sure. I've never had to look into that particular issue. What I can tell you is that divorces based on adultery are usually granted where there has been actual sex (in the genital-to-genital intercourse sense) between a spouse and someone else. I suspect that, from the point of view of the law, that this issue might be irrelevant. The thing is, you left the marriage because of your husband's abusive conduct, not because he'd committed adultery. You didn't discover that until after you'd separated. From my perspective, if the ground of your divorce was something other than separation, it'd be cruelty rather than adultery. Click here to go to the top of the page. My husband and I seperated last year. On the anniversary of our separation, my lawyer will file my divorce papers with the court. She said that I shouldn't plan on remarrying for at least 3-5 months, because that is how long it takes to get the official divorce documents mailed out to me. If a state, like Nevada. just wants the date your divorce becomes final and what city it was filed in, can my current fiance and I get married there without waiting up to 5 months for the official divorce documents? (by L of Cyberspace, BC) Honestly, I'm not sure what, if anything Nevadan marriage commissioners would require to conduct a marriage ceremony. I think you could find out by doing a websearch for "las vegas marriage service" or something to that effect. In a jurisdiction where proof of divorce is required, a Certificate of Divorce (which the court here issues) is all that's needed. Now, there are ways to speed things up. First, you can file your Writ of Summons and Statement of Claim now, as long as you've lived in BC for the past year. That'll cut about 30 days from the process for actually applying for the divorce. Once the anniversary of your separation rolls around, file your application. It usually takes 4 to 6 weeks to process the application in Vancouver, then end product of which is a divorce order. You can apply for your Certificate of Divorce 31 days after the date the divorce order was made, so now we're down to 2 to 2 1/2 months after [anniversary date]. Now, the court will fast-track the processing period if there's urgency, like a pending marriage. Your lawyer would just send in a cover letter explaining the urgency with the application materials. You can also short-circuit the 31 day waiting period if your and your present husband sign a waiver of appeal. I'd file that with your application materials. Click here to go to the top of the page. I need a bit of guidance on how to manage our separation. My wife (Canadian) and I (German) got married in Ontario in 1985 and we lived in Vancouver for many years. We still have a house here. In 2001, I took a job in Nigeria and the whole family (we have 3 children) moved to Lagos. Last year, we moved on to Nairobi in Kenya. At the beginning of this year, my wife and I agreed to separate amicably. She wants to stay in Nairobi (so our oldest child can finish school there) while I still have a residence in Nigeria. The questions now are:
Many thanks. (by R of Vancouver, BC) 1) Yes, the separation agreement can be based on BC law, so long as you both agree to it. It seems to me that Canada is where you lived most of your married life, although an argument could be made that Nigerian law should apply since that's where your child continues to live. The family does, however, have significant ties to British Columbia and if the applicable law is disputed, you have at least a decent argument that it should be BC law. In any event, most separation agreements have a clause spelling out which laws will apply to the interpretation and enforcement of the agreement, you just have to agree that the laws be those of BC. 2) You have to wait until you have been separated for one year before you can seek a divorce. In addition, you will have to have lived in BC, or any other Canadian province, for one whole year before you can ask for the divorce. Click here to go to the top of the page. This is more of a history question as I am working on my family tree. A family member was deserted by her husband in 1907 leaving her with three small children to raise. He took off for the U.S. and never made contact with his family again. She re-married 14 years later citing "Widow" on marriage license of 1921. I have evidence that the first husband was alive and well in 1922. Is this legal? Isn't there a desertion clause that when one party deserts and is gone for over 7 years, then you are considered divorced automatically? And why state "widow" on the license? Wouldn't documents have to be shown to prove this state? (by K of North York, ON) In 1907, the woman would have been able to apply for a divorce based on the long-extinct ground of abandonment. She would still have had to get a divorce order, however. Abandonment never gave a woman an automatic divorce, you still had to go to court and prove the fact of the abandonment. Now, it's not surprising that she put widow on her marriage licence. In 1907, divorce was looked upon as a moral failing. Divorced women were treated quite poorly, as undesireable "used" women. It may be the case that she never told her second husband about her first marriage, for fear of turning him away from her. It may be the case that she lied about her marital status simply to secure her remarriage without the expense and scandal associated with a divorce. Her marital status when she remarried isn't something that anyone would likely have looked into or verified. Remember that you're talking about a time long before the advent of the computer and easily searched databases. Records of marriage were probably maintained by the parish, and I doubt very much that the government would have kept tabs on someone's marital status they way they do today; they probably wouldn't even have looked for a death certificate for the husband. Even today, the Vital Statistics Agency (which gives our marriage licences) doesn't look into things particularly carefully. When I married, they performed no background checks and asked for no proof of my unmarried status. It was entirely possible for me to have been married in another province and then remarried here. Click here to go to the top of the page. I am the one that has commited adultery. Can I file for divorce on the grounds of adultery? Do I have to prove it somehow? How long does it take to get a divorce on such grounds? (by D of Kamloops, BC) Sorry, only the "innocent" spouse may file for divorce based on adultery. Your wife can start divorce proceedings on that ground, but you can’t. Probably the only ground for divorce available to you is going to be separation for one year, and you can't ask for the divorce until one year after you separated. If your wife does file for divorce based on your adultery, it'll take six to eight weeks for the process to complete, so long as all she's asking for is a divorce. Click here to go to the top of the page. Site Navigation
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