Tag: Right to Divorce

What happens if your spouse just ups and leaves?  Can you press charges? Is there an automatic right to divorce?

A reader recently posed these questions. Simply put, the answer is no.

In Canada, we have what can be effectively termed “no fault” divorce. This means that a Court does not have to find one spouse or the other is at fault for the breakdown of the marriage. So although it may be “wrong” for your partner to abandon you, it is not “illegal” and it is not a valid ground for divorce.

The only ground for a divorce in Canada in the Divorce Act is “marriage breakdown”. The Divorce Act says you can show your marriage has broken down if any one of the following criteria applies to you:

1. You have been living apart for one year or more.
2. Your spouse has been physically or mentally cruel to you.
3. Your spouse has committed adultery.

It is most common for a spouse to divorce based on having lived “separate and apart” with no reasonable prospect of reconciliation for at least one year. You do not need to establish that one spouse behaved badly in order to secure a divorce on the basis of a one-year separation.

The other two grounds for divorce are much more difficult to rely on:  you can seek a divorce on the grounds that your spouse committed adultery, or treated you with such mental or physical cruelty as to render continued cohabitation intolerable. A divorce on either of these grounds is available less than one year after separation.  However, unless your spouse is willing to admit to this behaviour – which for obvious reasons, not many people would – you must prove these grounds and it can be very costly to do so.

So if your spouse does up and leave you, you have remedies – you could file for divorce or initiate a court application for spousal support, or if you have children, child support – but a charge or declaration of “spousal abandonment” is not one of these remedies.

If you are considering a divorce or you and your spouse have been living apart for a significant amount of time, contact John Schuman of Devry Smith Frank LLP today at 416-446-5080. Alternatively, email john.schuman@devrylaw.ca 

“This article is intended to inform. Its content does not constitute legal advice and should not be relied upon by readers as such. If you require legal assistance, please see a lawyer. Each case is unique and a lawyer with good training and sound judgment can provide you with advice tailored to your specific situation and needs.”