According to the Justice department of Quebec, local courthouses receive requests for information and advice on preparing and filing divorce applications. This is to ensure that such applications comply with the Federal Divorce Act. Nevertheless, divorce proceedings vary from one Canadian province or territory to the next. Here is a step-by-step guide to getting a divorce in Quebec:
Grounds for divorce in Quebec
Before filing for divorce, you must have legally sound grounds for taking such a step. According to the federal Divorce Act, divorce can only take place if one or both parties involved produce evidence of marriage breakdown. In Quebec, a court of law will deem a marriage to have broken down based on one or a combination of the following grounds:
- Adultery: In this case, the person who has filed divorce suit must prove that his/her spouse has committed adultery.
- Physical and mental cruelty: For divorce proceedings to withstand legal probity based on this ground, one must prove that his/her spouse treated him/her with physical or mental cruelty that made living together impossible.
- Separation: Party or parties filing for divorce must have lived separately and apart for at least one year. The one-year separation period must have ended prior to commencement of divorce proceedings.
If you have legal basis for divorce, the next step is filing an application for divorce. Although this should be a straightforward affair, it is rarely so for various reasons including animosity between couples divorcing. With this in mind, divorce based solely on separation does not require any of the spouses to prove that the other was at fault. In such a case, parties involved can opt to file a joint divorce application. Legal experts call such applications uncontested divorce suits. On the other hand, divorce application under adultery or mental/physical cruelty grounds does not require assent of at fault spouse. This means you can file for divorce even if your spouse disagrees with your decision. Take note the federal Divorce Act gives victim in such a scenario the right to apply for marriage dissolution. An application that falls under this category is called a contested divorce suit. What’s more, divorce application must be submitted to the Superior Court in the district where you or both you and your spouse reside.
Request For Divorce Motion
After applying for divorce, the relevant party receives a “motion to institute divorce proceedings” that contains details such as:
- Divorce grounds
- Information on child support, spousal support, and property division requests
- Period within which one should respond to request for divorce motion
Upon receiving a request for a divorce motion, you will need to file an “appearance” informing the relevant judicial authority of one’s intention to take part in divorce case.
During divorce proceedings in court, the presiding judge reviews carefully the grounds cited by aggrieved party as well as supporting evidence. In cases where couples divorcing have jointly prepared and submitted a draft agreement (common in no-fault divorces), the presiding judge will study the agreement terms to ensure they are fair to both parties. Where necessary, the judge will make amendments to draft agreement. If the parties involved in a divorce case do not agree on aspects like child support payments, there are several options they can explore to settle their differences. To start with, a couple can opt to try professional mediation. This is a viable divorce resolution option because couples with children who intend to divorce in Quebec are entitled to five free hours of impartial advice from a professional mediator.
Another option is allowing the lawyers representing both aggrieved and at-fault divorce parties to hammer out the details of an amicable agreement. Finally, if mediation or lawyer-to-lawyer resolution fails, a judicial authority (judge) will determine all pertinent divorce aspects including sharing of assets/property, child support and custody, visitation rights, and spousal support.
In general, divorce suits filed in all Canadian provinces, including Quebec, must comply with the federal Divorce Act. This means divorce must be based on mental or physical cruelty, separation lasting at least one year, or adultery. One or both spouses can file a request for divorce motion. If divorce suit is amicable, parties involved can draft an agreement and present it to a judge for review and assent. For parties involved in a contested divorce, resolution of their case may require professional mediation.