Common Misconceptions about Divorce

We speak with dozens of people every month through our free, 15-minute consultation phone calls. Although every call is different and no two legal situations are identical, we have noticed that there are a few misconceptions about divorce and family law that seem to come up over and over again. We clarify these misconceptions so that you can better understand your rights and obligations.

1. We haven't lived separate and apart for a year yet, so there's nothing I can do.

You do not have to live separate and apart for one year before commencing proceedings. You can actually file a Statement of Claim for Divorce (Alberta) or a Notice of Family Claim (British Colombia) at any point after separation. Unless you are pleading adultery or mental and/or physical cruelty, you only have to live separate and apart for one year begore getting a Divorce Judgment or Final Order. You can have all other issues (property, parenting, child support, and spousal support) resolved within the first year of separation.

2. We're not married, so I don't owe them anything.

In Alberta, married spouses and unmarried adult interdependent partners are treated the same under the Family Law Act and the Family Property Act. The property division provisions apply to married spouses immediately upon marriage and to adult interdependent partners after they have lived together in a marriage-like relationship for a period of at least three years.

In British Colombia, married and unmarried spouses are treated the same under the Family Law Act. The property division provisions apply to married spouses immediately upon marriage and to unmarried spouses after they have lived together in a marriage-like relationship for a period of at least two years.

3. I'm the mother, so the children have to stay with me.

There is no presumption in favour of one parent over the other. Historically, there was a presumption in favour of mothers as a result of the Tender Years Doctrine. This, however, is no longer utilized. The only legal test is what is in the best interests of the child. The argument that mothers should have primary care of children is outdated and not reflective of the current law.

4. My spouse cheated and/or decided to end the marriage, so I should get more.

Canada is a no-fault jurisdiction. What this means is that the reason for the breakdown of the relationship is essentially irrelevant. The Court cannot grant damages or an unequal division of assets in favour of one spouse due to the other spouse's indiscretions.

5. My spouse won't sign anything, so they are preventing me from getting the divorce.

One spouse cannot prevent the other spouse from getting a divorce granted if all the criteria are met, and the Court is satisfied that the divorce should be granted. In the event your former spouse refuses to engage in the court process, once they are served and fail to respond in a timely manner, the Court may proceed without further notice to them.

6. I have to stay in the house at separation or I won't get anything.

Whether or not you are on title to the house, you are still presumptively entitled to an interest in the equity of the home, regardless of where you live. If you feel that you need to move out of the house, move out. You will still retain all the rights and interests that you had in the house while you lived there.

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Separation can be a stressful and emotional time where you may feel lost and confused. However, a family lawyer can help clarify the issues and your rights and obligations. Our team of experienced family lawyers can provide clarity and guidance on your legal situation. Call to arrange a free, 15-minute consultation with an experienced family lawyer in Vancouver or Calgary.