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HOW TO SURVIVE YOUR FIRST YEAR OF MARRIAGE
If you and your spouse decide to separate, there is no need to start divorce proceedings right away. Because divorce changes your rights and responsibilities as they relate to your spouse, you should consider the matter seriously and speak to someone who may be able to go over your options with you, for example a professional counsellor, a lawyer, or an employee with Family Justice Services. Couples often choose to remain separated for a period of time before they start the divorce process. Time apart may give the two of you a chance to work out some of your concerns. It is possible to get interim orders which can be used during the period of time between when you separate and when you choose whether to divorce or to get back together reconcile. If you do choose to get a divorce then you will follow the process from the Divorce Act which is the federal law that deals with how divorces can occur throughout Canada. In the Divorce Act there is only one official reason for a divorce: According to this statute, there are 3 ways that marriage breakdown can happen: Separation You and your spouse must have lived separate and apart for at least one year prior to a Divorce Judgment. The divorce action may be started before the one-year period has ended which means that you can file all your paperwork and forms during that year, but must still wait the full year before the divorce judgment will be granted. This is the final document that finalizes your divorce and would allow for you to re-marry etc. In many cases, during a separation spouses will live in two different places however, this is not required. Due to financial or other family circumstances, spouses may decide to reside in the same home during the year of separation. Under certain circumstances, it is possible to live separate and apart even though both spouses live under the same roof. This can happen if: Spouses sleep in separate bedrooms; b. There is little or no communication between the spouses; c. Spouses do not have sexual relations with each other; d. Spouses do not perform domestic services i. Spouses do not share any social or recreational activities. It should be noted that this list is not complete because every separation is different but the idea is that you are living as roommates rather than as a family. Reconciliation A spouse who is seeking a divorce based on a one-year separation may reconcile get back together with his or her spouse without disrupting the one year time period as long as they are back together for no longer than 90 days. If there is reconciliation between spouses that is longer than ninety days, the one-year separation period will be interrupted and the spouses will no longer have grounds for divorce. If this occurs, the separation period will have to begin again, and the spouses will have to wait another twelve months from the date of their last separation before applying for a divorce. Adultery The law defines adultery as an event when either spouse has cheated by engaging in acts of an intimate nature with someone else during the marriage. Only the spouse who did not commit adultery can file for divorce if you are choosing to use this as your reason for the divorce. A spouse cannot use his or her own adultery as grounds for a divorce. This means that you cannot say that you cheated and argue that this should allow you to get a divorce. If you are the one using adultery as the reason you are getting a divorce, you do not have to wait a year before starting or completing the divorce proceedings. For example if the adultery occurred a number of years ago and since then you have gotten back together as a couple. Generally, Courts will say that the adultery must be your reason for getting a divorce. Cruelty The third ground for divorce is if there is cruelty. This includes either physical or mental cruelty. Cruelty only needs to happen once before a spouse may ask a Justice for a divorce. Examples of mental cruelty include a spouse consistently coming home drunk, constant verbal abuse, or excessive drug use. Only the spouse complaining of the cruelty can file for divorce. Like adultery, cruelty must be proven, and it is normally very difficult to do so. If you are using cruelty as the reason you are getting a divorce, you do not have to wait a year before starting or completing the divorce proceedings. It is highly recommended that anyone who is filing for divorce on the grounds of either cruelty or adultery consult with a lawyer before starting divorce proceedings. These grounds are difficult, time consuming and expensive to prove, it is often better to start the divorce proceedings such as filing all of the required paperwork and then just wait the full year of separation to get your final divorce judgment. If you are the person starting the divorce, you will be the Plaintiff and your spouse will be the Defendant. If your spouse is starting the divorce action, he or she is the Plaintiff and you are the Defendant. This second type will deal with property division at the same time — but it is not required. You can get these documents online at the Alberta Courts website albertacourts. Once the Statement of Claim for Divorce is completed, it must be signed and taken to the Courthouse. You should have three copies of all of your forms whenever you go to the Courthouse: This means that it must be personally delivered to the Defendant. This can be a friend, family member, or a professional process server that you can hire to serve documents for you. If it will be too difficult, or impossible, to serve the Defendant personally, you can ask the Court for an Order for Substitutional Service which will allow you to serve them in a different way. As well, if the Defendant lives outside of Canada, you will need to ask the Court for an Order to serve them outside of Canada. After service of the Statement of Claim, the Defendant has 20 days 1 month if he or she is out of province but still in Canada, and 2 months if outside of Canada to dispute the Statement of Claim. If the Defendant does not file a dispute Statement of Defence , then you can go on with the other forms. If you are using one year of separation as your grounds for divorce, make sure that one year has passed before moving on to this step. Your affidavit should include: Your original Marriage Certificate; b. A copy of any orders or agreements pertaining to your divorce, and c. A copy of any previous Certificates of Divorce, if applicable. If you do not have your Marriage Certificate, you can order it from the Department of Vital Statistics. In Edmonton and area, call  The Clerk will then give the divorce file to a Justice to look at. Once the Justice is satisfied with the documents and evidence presented, he or she will sign the Divorce Judgment. The Judgment will then be returned to the Clerk, who will mail one copy each to the Plaintiff and the Defendant at the addresses given in the Request for Divorce. This process usually takes weeks. Thirty-one days after the Divorce Judgment has been signed, it becomes final and the parties can make a request for a Certificate of Divorce from the Courthouse, which is the final document of the divorce action. This is an important document for both the plaintiff and defendant to keep because it proves that they are no longer married. You will also need this certificate if you want to re-marry. Other steps may be needed if the defendant lives outside of Canada, if the defendant cannot be located, or if the plaintiff is asking for maintenance support or other costs. There are situations where a Justice may not let you get a divorce, these include: Spouses who intentionally mislead the Court will not be allowed to divorce. An example would be two spouses agreeing to state that they have been separated for one year when in fact they have only been separated for one month. You and your spouse have children that you have not worked out an arrangement for. The Justice must be satisfied that reasonable arrangements have been made to take care of and support the children financially after the divorce. You must ensure that these issues are dealt with before going to Court for a divorce application or else you may have to go back again after having dealt with any issues that were found.
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