3 Grounds for Divorce in Alberta
First a note regarding terminology: divorce is the legal termination of a marriage, Separation is the termination of parties cohabitating as man and wife. A separated couple can be separate under one roof or can be living at different addresses, and it is possible for a non-separated couple to live at different addresses.
To understand the grounds for divorce it is helpful to understand the history of divorce law in Canada. The first national divorce law in Canada was the 1968 Divorce Act. Prior to that Act’s passage most provinces in Canada had their own divorce legislation, but to get divorced one had to prove that their spouse had committed a bad act. In 1968 the concept of no-fault divorce was introduced, but the old fault-based grounds of adultery and cruelty were retained, and they remain to this day with only minor changes.
Today, one only need to prove a breakdown of a marriage to get divorced. That can be shown by satisfying the court that the spouses have been separated for one year, or that there has been adultery or cruelty of “such a kind as to render intolerable the continued cohabitation of the spouses.”
- Divorce Act (1985) section 8(2):
- Breakdown of a marriage is established only if
- (a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
- (b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,
- (i) committed adultery, or
- (ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.
While there are three grounds for divorce the vast majority of divorcing couples chose to use the one under paragraph 8(2)(a) – living separate and apart for at least one year. This is true even for people who have endured adultery or cruelty because proving those things is more difficult than proving that you have lived separate from your spouse for more than a year. Most people don’t want to go on record in a public proceeding with a confession that they have been cruel or adulterous, and absent that one would need a judicial hearing to determine if the grounds were met.
Critically, the reason for the breakdown of the marriage is by itself irrelevant to any family law proceeding.
In my experience the only time people use grounds other than one-year separation is when someone cannot wait the one year to get divorced and when the other party consents to using the alternate ground.
