How is Divorce Different from Separation?
Divorce can be confused with separation; however it has a very different legal meaning. Divorce creates a change in one’s legal status from married to single and it must be granted by the court. Married couples seeking a divorce must comply with the Divorce Act. A separation does not legally end the marriage, whereas a divorce ends the marriage once it has been granted by the court.
Section 8(1) of the Divorce Act sets out divorce as the breakdown of a marriage; however there are three ways to establish a marriage break down. One way, which is most common is the no fault ground of separation. This is when spouses have been living separate and apart for over a year and at least one party does not intend to reconcile. There are two fault grounds for divorce: adultery and cruelty which can be used to by-pass the one year separation period.
Which Courts Deal With Divorce?
Divorce is federal matter, however the residential province of the party seeking the divorce is relevant to determine jurisdiction. Section 3(1) of the Divorce Act states that:
‘A court in a province has jurisdiction to hear and determine a divorce proceeding if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.’
Therefore, if one spouse has lived in a province for a minimum of one year immediately before the start of the divorce proceeding then either spouse can commence a divorce in that province.
What if Two Spouses Start Proceedings in Different Provinces?
Section 3(2) of the Divorce Act established that the divorce proceeding which was started first continues, and the subsequent one is discontinued. If two proceedings are commenced on the same day in two different provinces, then the divorce is dealt with the Federal Court (which is under section 3(3) of the Act).
The Superior Court of Justice of Ontario has jurisdiction over divorce proceedings. This includes several locations throughout the province which have the unified Family Court of the Superior Court of Justice.
