Five Common Myths about Divorce

Kimberley Wilton, B.Sc. (Hons.), B.A., J.D.Arbitration, Child Support, Collaborative Family Law, Custody and Access, Division of Property, Divorce, Equalization, Family Law, Separation, Separation Agreements, Spousal Support0 Comments

  1. Both Spouses Need to Consent to Divorce

In Canada, if one spouse wants to divorce, they do not need to seek their spouse’s consent to divorce. Canadian courts will grant a divorce under three grounds: if spouses have been separated from each other for a year without reconciling; if a spouse has proven adultery occurred during the marriage and they have not absolved their spouse; and if one spouse proved they received mentally or physically cruel treatment from their spouse.

  1. The Spouse Who Earns Less Income Always Receives Spousal Support

Unlike child support, separated and divorced spouses do not have an automatic right to receive spousal support when their marriage ends. Separated spouses may be entitled to receive spousal support. There are several factors which give rise to an entitlement to spousal support. These factors include the length of the marriage or relationship, the roles each spouse played in the marriage, and the incomes of each spouse, among other factors.

  1. Married Spouses and Common Law Spouses Have the Same Rights

This is false. While common law spouses may be entitled to receive spousal support, they do not have the same automatic property rights as married spouses upon separation. At separation, common law spouses are entitled to the property they brought into the relationship and acquired during the relationship. Common law spouses can advance a trust claim if they made direct and indirect contributions to their spouse’s property. Common law spouses are not entitled to equalization.

  1. A Spouse’s Behavior During Marriage Will Affect Support and Property Division

In Canada, divorce is “no-fault”. This means how spouses behaved during their marriage, including if they committed adultery, is generally irrelevant when determining if spousal support is payable, when dividing matrimonial property and when determining custody and access of the children.

  1. Family Court is the Only Way to Resolve Property Division, Support and Child Custody and Access Issues

Most separated spouses resolve their outstanding support, property division and child custody and access issues outside of Court with a Separation Agreement. Separation Agreements can be negotiated by spouses with or without counsel, or through alternative dispute resolution (ADR). ADR refers to processes that try to resolve family law issues without proceeding to court. These processes can be cheaper, faster, and less acrimonious than going to court. Mediationarbitration and collaborative family law are examples of common ADR processes.

At Gilbertson Davis LLP, our family law counsel can assist with your family law matter. We offer advise and represent clients on a full range of family law matters, including divorce, separation, child support, spousal support, child custody and access and alternative dispute resolution. Our mission is to provide creative, sensible, cost-effective long-term resolutions to family law disputes. Please contact Gilbertson Davis LLP to schedule a consultation.

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About the Author

Kimberley Wilton, B.Sc. (Hons.), B.A., J.D.

Kimberley practices exclusively in family law, from contentious custody and access disputes, child and spousal support claims, to complex property division, adoption applications, and mobility issues. Kimberley is a skilled litigator and experienced in alternative dispute resolution. Bio | Contact

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