People who are unhappy in their marriage begin to ask about the legitimate grounds for divorce. Our take on the matter is that there shouldn’t be any divorce. People enter into a marriage and it becomes a sealed partnership, whether or not they get married by a Catholic priest, a rabbi or a judge. This is why it is a good idea to have witnesses when you marry. You and your spouse are not the only ones who will experience this wonderful milestone, but you’re also sharing this special union with others.
Discussing the grounds for divorce is a touchy subject. It is painful for the couple, unfair and confusing for the children, a disappointment for society. Marriage, after all, is an institution that constitutes the moral fiber of communities. When that institution is compromised, society, not just one family, is affected.
Not that we think that traditional institutions should remain forever. Nor do we think that they can’t be replaced by new ones or transition into obsolescence. Marriage could never be an obsolete or old-fashioned tradition. This is the reason why weddings continue to be planned, executed and participated in by others. Just because the divorce rate is on the rise does not mean that marriage is on a downward path. People are still getting married in record numbers. That’s sufficient proof that marriage is very much part of the human landscape.
We can scream “work out your troubles, stay married!” until we’re blue in the face but if two people no longer love each other and even a third party – like a marriage counsellor – says it’s time to sever ties for the sake of everyone, then of course divorce is the next logical step.
But we’ll stick to our opinion: people should work out their troubles on a best efforts basis before considering divorce. This working out becomes even more imperative when children are involved.
But this article is supposed to outline the grounds for divorce, not to pontificate. So under what grounds can a couple break their union?
Legitimate Grounds for Divorce: US
It is incredibly easy to get divorced, at least as far as the legal authorities are concerned. It may be costly, and it may inflict physical and psychological damage to the couple and their children, but divorcing is one of the easiest things to do. Just as it is difficult to save money but easy to spend it, getting married takes a bit of thinking and soul-searching but divorcing is as easy as 1-2-3.
Couples can file either for a no-fault divorce or a fault-based divorce. Both are practiced in the US and Canada. There are subtle differences between the two countries.
A no-fault divorce is one wherein the spouse who is seeking a divorce does not have to prove that his or her spouse did something wrong. All 52 states of the US allow a divorce regardless of who is at fault.
An American who wants to obtain a divorce simply states a reason for the divorce as long as the reason is deemed valid by the state. In most states, valid reasons include:
- Irreconcilable differences
- Irremediable breakdown of the marriage
Important: the no-fault divorce is the only option available even when there has been wrongdoing - in about 15 states. Other states give couples the option to choose between a no-fault or fault-based divorce.
If a couple decides to go the no-fault route, they must live apart for a certain period. This period varies from state to state, but it can range from six months to five years. Check with your state attorney.
A couple that chooses a fault-based divorce does so because they (a) can’t wait for the grace period imposed by the no-fault divorce method, (b) one or both spouses may be at fault. Moreover, (c) if one spouse can prove that the other is at fault, the court may grant higher compensation to the spouse who has been wronged.
If a couple chooses to file a fault-based divorce, what “faults” are accepted?
- Physical and mental cruelty
- Prison sentence
- Non-consummation of the act (sexual intercourse), unless the spouse has told the other before the marriage.
Neither spouse can prevent the courts from granting a no-fault divorce. In a fault-based divorce case, however, a spouse can ask the courts not to grant the divorce by using certain defense arguments. Do think twice when using any of these arguments because they can be time-consuming and expensive to prove. You may want to sit down with your lawyer to discuss the advantages and disadvantages of challenging the courts not to grant the divorce under a fault-divorce case.
Legitimate Grounds for Divorce: Canada
Canada’s divorce law was officially established in 1986. Prior to that, adultery was the only ground for divorce.
The Divorce Act of 1986 decides the grounds for divorce (both no-fault and fault), spousal and child support, and access to children after the divorce. The division of property between the spouses however falls under the jurisdiction of the provincial courts.
The Canada Divorce Act of 1986 recognizes only one ground for divorce: the breakdown of the marriage. What constitutes breakdown?
- Spouses have lived apart for one year prior to filing for divorce
- Physical and mental cruelty
The first one falls under no-fault divorce and either spouse can file for a no-fault divorce. Both spouses can formally file for a divorce even before the one year period, but the divorce judgment is given only after the one-year period.
The last two (adultery and cruelty) fall under fault-based divorce and the one-year waiting period is waived. It is, however, only available to the spouse who isn’t at fault.
The Canada Divorce Act of 1986 encourages reconciliation if the court decides that it is appropriate to raise it with the spouses. Divorce proceedings can be stopped to give the husband and wife the time to think and work out a possible reconciliation but this adjournment or pause period is good for only 14 days.
Grounds for Divorce: Legal Technicalities
If the fault-based divorce is sought by a couple, a heavy burden of proof rests on the spouse who is requesting the court NOT to grant the divorce. There are four ways to prevent a court from granting a divorce in a fault-based divorce: collusion, connivance, condonation and the absence of child support. This is where a divorce case gets more technical and your best alternative is to discuss these with an experienced divorce lawyer in your state or province. These four are used in both the US and Canada.