Most people assume that if they are married and they want to end the marriage, divorce is the simple answer. While this may be true for most married couples, the answer might not be so simple. For one, there are alternatives to divorce, such as legal separation or annulment. For another, the divorce process itself can be very different depending on whether both parties agree to the divorce (uncontested) or if one party is challenging the divorce (contested). Below, we will outline the various options mentioned here and provide some basic information about when each situation could apply, and what to expect.
Divorce is not necessarily the only option available to married couples. For various reasons, a couple may wish to explore alternatives that are better suited to their needs.
Separation is often the first step in a divorce since most divorces in Alberta will only be granted once a couple has been legally separated for at least one year. Any matters that require finalizing, such as spousal support, child support, or parenting time and decision-making authority (formerly referred to as child custody and access), can be determined prior to a divorce and set out in a separation agreement or in a court order. Once the terms of the separation are determined, some couples opt not to take the final step of completing a divorce. Of course, if either spouse wishes to remarry in the future, a divorce will become necessary.
In addition, a person’s marital status may have an impact on other legal issues, such as their will. A divorce has the effect of invalidating any parts of a will naming the former spouse as a beneficiary or executor. However, a separation does not have the same impact.
An annulment is an order from a court stating that a marriage is invalid or never existed. Some couples choose to pursue an annulment due to religious reasons, and some religious institutions might offer a religious annulment for the purposes of remarriage within the faith. However, a religious annulment is not the same as a court-ordered annulment. A legal annulment will only be granted in limited circumstances, including the following:
An uncontested divorce occurs when neither party objects to the divorce, and all corollary issues, including the division of property, child and spousal support, and parenting matters, have been agreed upon by the parties. This could be the result of the spouses sitting down and coming to terms on their own, or by working to resolve any matters in dispute through mediation, arbitration, or negotiation to reach an agreement.
If there are no matters in dispute, once the mandatory separation period has passed, the parties can apply for a divorce order from the court. This is generally the simplest and most cost-effective means of obtaining a divorce, depending on the amount of effort required to reach an agreement.
If the parties are unable to reach an agreement on their own or through alternative dispute resolution methods, or if one spouse refuses to agree to divorce, then the divorce is contested. In a contested divorce, parties must appear in court to present their case to a judge. Under the federal Divorce Act, spouses are encouraged to use alternative options to resolve issues in dispute before resorting to family litigation, however it may be necessary in certain cases.
In certain cases and under specific circumstances, a court may agree to grant a divorce without imposing the mandatory one-year separation period.
It is possible to divorce a spouse who cannot be found; however, the applicant spouse will need to demonstrate that they’ve done everything within their power to locate their spouse. These efforts could include placing an ad in local newspapers or in a courthouse, for example. Once a court is satisfied that the applicant has done their due diligence in attempting to locate their spouse without success, they will generally grant the application for divorce.
Whether a divorce is low-conflict or highly contentious, simple or complex, Mincher Koeman aims to ensure that our clients are steered towards the most efficient and cost-effective resolution. Our family lawyers are committed to treating your matter with empathy and skill, putting our considerable experience to work for you. Contact our office to make an appointment to discuss your matter with one of our lawyers today by calling us at 403-910-3000 or by contacting us online.
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