What are the Grounds for Divorce?
A valid marriage continues indefinitely, regardless of how long the spouses have been separated. There is no such thing as an automatic divorce. One or both of the spouses must choose to end the marriage by applying for a divorce.
In Canada, a divorce will only be granted if the applicant can establish grounds for divorce. In fact, it is more accurate to say “a ground for divorce” (singular) because the law recognizes only one reason for a divorce: the breakdown of the marriage.
A breakdown of the marriage can be can be established in one of three ways:
1. Separation – If the parties have been living separate and apart for at least one year.
2. Adultery – If the other spouse has cheated.
3. Physical or Mental Cruelty – If the other spouse has treated the applicant with physical or mental cruelty.
Let’s have a closer look at each of these grounds for divorce.
It is important to understand that in this context “separation” refers to the decision not to live together with the intention of ending the relationship. Living separately for other reasons does not count. For example, a couple who are living in different cities for work reasons but are otherwise still in a committed relationship would not be considered to be separate unless and until they also breakup. Conversely, it is possible to be separated and yet still live under the same roof (for example where one spouse has moved out of the bedroom and onto the couch, but only if this was the result of a breakup and not, for example, because the snored too much.)
In divorce law, adultery has a very precise and restrictive meaning: in order to have committed adultery one must have had sexual intercourse with someone besides their spouse during the marriage. Anything short of sexual intercourse does not constitute adultery, though it may be cheating and a deal breaker in the relationship. As an example, President Clinton did not commit adultery with Monica Lewinsky. Aside from being a ground for divorce, adultery is usually not relevant to issues of custody or support.
Physical or Mental Cruelty
If one spouse treats the other with physical or mental cruelty, the victim may be entitled to a divorce. Not every cruel or upsetting action counts as physical or mental cruelty. It must be sufficiently severe to make continued cohabitation (living together) impossible. For example, an occasional yelling match during an argument would not amount to mental cruelty even if it was very upsetting. However constantly demeaning or belittling the other spouse might.
Most people choose to apply for a divorce on the basis of having lived separate and apart for over one year. It is just easier to prove a separation than to prove adultery or cruelty. Plus, applying on for a divorce on the basis of a separation avoids finger pointing. However in some cases people do choose to apply on the basis of adultery or cruelty. There are many reasons for this, ranging from a desire to prove who was at fault, to wanting to dissolve the marriage faster without having to wait a whole year.