If your marriage is not working, you can take action to end it. You can get a divorce. Divorce is governed by the Divorce Act in Canada. For more information about divorce in the province of Alberta, see A Guide to the Law in Alberta Regarding Divorce. Information about other provinces can be found on LawCentral Alberta at www.lawcentralalberta.ca.
Your sponsorship status will affect how a divorce is arranged. If your sponsorship application is being processed, you will need to find out whether you have to leave Canada or can stay. If you are a permanent resident sponsored by your husband, he will be required to maintain his sponsorship even if you are separated or divorced.
Divorce legally ends a marriage. You cannot be denied a divorce unless you fail to follow the appropriate procedures. If you want a divorce, your husband does not need to consent to it in order for a divorce to happen. The opposite is also true – if your husband wants a divorce, he does not need your consent.
- Grounds (Reasons) for Divorce
- Filing Process
- Implications for Sponsorship – Application Being Processed
- Implications for Sponsorship – Permanent Resident Status Granted
- Matrimonial Property
- Finances – Bank Accounts and Debts
- Financial Support
- Children During Separation and Divorce
Grounds (Reasons) for Divorce
In Canada the only legal reason for obtaining a divorce is a “breakdown of the marriage” and three situations indicate this:
- You and your husband have lived separate and apart for one year or more. If you are separated, you can file for divorce immediately. The divorce will not be granted until one year has passed since the separation.
- The person being divorced (not the person seeking divorce) has committed adultery. In this case you may be able to obtain a divorce in less than one year.
- The person being divorced has treated his or her spouse with mental or physical cruelty so serious that the spouse can no longer continue living with their married partner. This is known as domestic violence or abuse. In this case as well you may be able to obtain a divorce in less than one year.
It is a good idea to get a lawyer when you are ready to begin the divorce process. If you cannot afford one, you may be eligible for legal aid. A lawyer can help you through the more difficult parts of the paperwork and make sure you are doing it properly. A lawyer can also help figure out certain things such as financial support, division of matrimonial property, and child custody.
If you choose not to use a lawyer, you can file the claim yourself. There is a fee for doing so. You will also have to find someone to deliver the paperwork to your husband as you cannot do it yourself. If you cannot ask a friend, you may have to pay a process server to do this. You can find a process server by looking in the phone book or phone directory.
Implications for Sponsorship – Application Being Processed
If your sponsorship application is still being processed and you are not yet a permanent resident of Canada, divorce from your husband could affect your status because you are no longer considered part of the Family Class. Most likely, you would have to leave Canada and reapply to enter. There may be exceptions to this. You may apply for permanent residence on humanitarian and compassionate grounds. For more information, go to the Citizenship and Immigration Canada website.
Consult a lawyer about preparing this kind of application.
If you feel you cannot afford a lawyer, you may be eligible to receive legal aid.
Implications for Sponsorship – Permanent Resident Status Granted
Once completed, the sponsorship agreement is legally binding whether you remain together, separate, or divorce. This means that if you are already a permanent resident and you have separated or divorced from your husband, your sponsorship status will not change and your ex-husband still has a legal obligation for the three years of the sponsorship agreement to financially support you and any children you have together.
Legally, your husband cannot use sponsorship as a way to keep you in the marriage if you do not want the marriage to continue.
Matrimonial property includes many of the material goods (that is, your house, household goods, and vehicles) that you and your husband shared while you were married. The law in Canada tries to ensure that the division of that property is done fairly.
Remember that just because property is in your husband’s name, it does not mean he will get to keep all the property. The opposite is also true.
You and your husband can decide together how to divide your belongings between each other. Ultimately, it is up to a judge to make the final decision on how to all of your property will be divided. Generally the courts will agree with what you have decided if both of you are satisfied. This part of divorce can be quite complicated, so it is a good idea to seek the advice of a lawyer.
Each province in Canada has its own act that governs how to divide matrimonial property.
In Alberta, the Matrimonial Property Act governs matrimonial property.
Finances – Bank Accounts and Debts
Bank accounts will be divided in a similar way as the matrimonial property and are governed by the same provincial legislation. This is also the case with debts, regardless of whose name the debt is in. You are both responsible for the settling of the debts while you were together. Matrimonial property and finances are not decided at the date of separation but at the date of settlement (when the divorce is final). Therefore, remember to protect yourself from being responsible for debts not incurred by you during your separation.
In some cases, you might also be entitled to receive spousal or child support from your husband. This depends on who made the majority of the money during your marriage and what your incomes are after the divorce. If you were a full-time stay-at-home mother while your husband worked, you may not have job prospects. If you are unable to get a job, your husband could be required to continue to support you financially. This is also true if your sponsorship agreement is still in place (that is, the standard three years are not over). Also, if you have children and you are taking the role as their primary caregiver after the divorce, you may be able to receive money from your husband to support your children. This kind of financial support would most likely come in the form of monthly payments. You can come to an agreement with your husband privately or you can go before the courts to have a decision made. You should consult a lawyer before making any decision.