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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.

Alternatives to Divorce: Separation and Annulment

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

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.

Annulment

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:

  • If one spouse was already married at the time of the marriage
  • If one or both spouses got married under threat to their physical safety
  • If one or both spouses was inebriated to the point where they lacked the capacity to understand they were getting married
  • If one spouse is unable to consummate the marriage
  • If one spouse was under the age of 18 and lacked their parent or guardian’s consent, and the marriage had not yet been consummated

Types of Divorce

Uncontested Divorce

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.

Contested Divorce

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.

Divorce Without a Separation

In certain cases and under specific circumstances, a court may agree to grant a divorce without imposing the mandatory one-year separation period.

  • Adultery. A court will consider granting a divorce if it can be established that one spouse had sexual intercourse with a person outside of the marriage. A spouse can apply for divorce on this ground at any point after discovering the adulterous behaviour, however, they must be able to satisfy a court that the adultery took place, either by presenting evidence or via a sworn affidavit signed by the spouse who committed adultery.
  • Cruelty. If one spouse has subjected the other to cruelty, even if it occurred only once, the other spouse may apply for a divorce order. To establish cruelty, the applicant spouse must be able to provide evidence of the cruel behaviour they were subjected to that has made living together impossible. Examples of cruelty include:
    • Violence
    • A consistent pattern of verbal abuse
    • Drunkenness
    • Excessive drug use

Divorcing a Spouse Who Cannot Be Located

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.

Contact the Skilled Family Lawyers at Mincher Koeman in Calgary for Assistance with your Separation or 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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707 7 Ave SW #1300,
Calgary, AB T2P 3H6

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