What is the Difference Between Fault and No-Fault Divorce

Breaking up is never easy. The realization that you and the person with whom you planned to spend the rest of your life can no longer remain together as a couple can be devastating. Splitting up by living separate and apart is relatively easy to accomplish with little required in the way of legal formalities, but it becomes more complicated for couples that are married because a court proceeding is required to terminate the marriage. If you are married and wish to obtain a divorce to end your marriage, it is important to be familiar with the fault and no-fault grounds for divorce in Canada.

Ontario grounds for divorce

A divorce terminates a marriage, so the process for accomplishing it is more complex than if you and your spouse merely separate. Living separate and apart is a decision you and your spouse reach, but a divorce requires a court proceeding resulting in a court order to end the marriage.

The process for obtaining a divorce is controlled by the federal Divorce Act. Courts are authorized to grant a divorce when there has been a breakdown of the marriage. There are three circumstances or grounds under which a court could conclude there has been a breakdown of a marriage:

  • Living separate and apart for at least one year
  • Adultery
  • Physical or mental cruelty

Separation for at least one year is a no-fault ground because it is the only one of the three grounds for divorce that does not require proof of wrongdoing on the part of your spouse in order for you to end the marriage. Adultery and physical or mental cruelty are fault grounds.

No-fault divorce

Proof that you and your spouse separated and did not live as a couple for at least a year is the least confrontational ground for divorce because you do not have to produce evidence proving that your spouse did anything wrong. It is relatively easy to prove that you lived separate and apart from your spouse if one or both of you moved from the former matrimonial home and established independent residences elsewhere.

Separation from your spouse can be used as the basis for obtaining a divorce even when both of you continue to reside in the same home. The law recognizes that financial or other circumstances make it difficult at times for couples to immediately relocate to separate residences, so judges take that into consideration as long as there is proof you did not cohabit as a couple.

Fault grounds for divorce

Adultery and physical or mental cruelty are fault grounds for a divorce because you must prove the conduct of your spouse caused the breakdown of the marriage. The conduct of your spouse, in order to be used as the grounds for a fault divorce, must have occurred during the marriage and not before it. In other words, the fact your spouse cheated on you while the two of you were dating cannot be used as the basis for filing an application for a divorce.

When filing for a divorce using cruelty as the fault ground for it, you must prove the behaviour of your spouse was such as to make it impossible for you to continue to live together as a married couple. The evidence must be persuasive and specific as to dates, locations and the type of mental or physical cruelty.

Impact of fault and no-fault divorce on financial and child custody issues

As a general rule, issues pertaining to property division, child custody, child support and access to the children are unaffected by the grounds chosen for a divorce. Your spouse’s behaviour toward you may result in an order granting you a divorce, but it may not affect the outcome of how a judge rules on other issues.

A consultation with a lawyer may help

An Ontario lawyer familiar with family law and experienced representing individuals in divorce proceedings can assist with questions and concerns you might have about the ending your marriage. A lawyer may also be able to reach a settlement of financial and child-related issues with your spouse to avoid submitting them to a court.