Divorce is a legal process that requires a legal reason and court judgment to end the marriage. Most spouses seeking divorce rely on having lived separately for a year as their basis for seeking a divorce judgement. In the past, adultery or physical / mental cruelty were more frequently relied upon, and are still available as justification for divorce.
During the divorce process, the judge will resolve other issues related to the marriage before the divorce is finalized, unless the parties resolve these issues by agreement. Some issues that will need to be decided include:
- Division of assets
- Custody (including all parenting arrangements)
- Financial support of children
- Spousal support
- Determining who will live in the family home
- Dealing with debts
To start the process, you will need a legal reason, or grounds, for the divorce. Saskatchewan is a no-fault jurisdiction where separation for more than a year is usually the reason given. This means you can’t receive a divorce judgement until after the one-year anniversary of your separation. However, you can start your divorce process almost immediately if desired.
DOES COMMON LAW MARRIAGE REQUIRE A DIVORCE?
Cohabitating as spouses for two years creates almost all the same legal rights and entitlements upon separation that apply to separating married spouses. A divorce is not needed to end a cohabitation or common-law marriage, but a legal agreement will be needed to resolve property and financial issues in much the same way as in a divorce, especially if there are children from the relationship.
WHAT IF BOTH SPOUSES DON’T AGREE TO DIVORCE?
The divorce process is smoother if both parties agree to end the marriage. However, you don’t need your spouse’s agreement to proceed with a divorce. The law does not force you to stay in a marriage.
You are legally entitled to a divorce even if your spouse won’t agree or refuses to sign the divorce papers.
DO SPOUSES HAVE TO GO TO COURT TO GET A DIVORCE?
While a divorce is only final when a judge signs a written divorce judgment, you do have options other than going to court to resolve your issues.
Spouses that can work together to reach agreement on all issues usually sign a separation agreement (or legal separation) which resolves all financial, parenting and spousal issues so that the court need only grant the divorce. This is a cost-effective result which lawyers can assist with. If significant disputes prevent agreement, court applications or perhaps even a trial, become likely. These can be a significant financial drain for both parties, at a time their living expenses have increased due to separation. If both have lawyers, two sets of legal costs can quickly become burdensome.
Another option is a collaborative divorce, where the spouses’ lawyers help them negotiate the divorce and reach an agreement. If successful, they can avoid going to court concerning these issues, and can save money and time.
Note: The information in this blog is not legal advice. Consult a lawyer for advice for your situation.