An Overview of the Divorce Act

Divorce Act

Before during and after a divorce, the parties involved want to learn about divorce law and where to start. Under Canada’s Constitution there is a law called the Divorce Act, which governs the manner in which the divorce process and its requirements work. This article will discuss various aspects of divorce and the divorce law in Canada.

It is important to note that because the Divorce Act is a law passed under Canada’s constitution divorce falls under the jurisdiction of the federal government. In turn, because the Divorce Act is a law passed by the government of Canada, divorce law is the same in every Canadian state. Therefore, to know more about divorce in any part of Canada one would need to refer to the Divorce Act. It is possible to read more on the Divorce Act online or to get copies of the Act at your local public library or in a courthouse law library near you.

The Divorce Act speaks of a number of terms that may not readily mean what a general person assumes. Some of these terms include the following:

  • Spouse – according to the Divorce Act a spouse refers to either of the two persons who are married to each other.
  • Age of majority – the age of majority means the age that a child is considered a legal adult in the province where the child ordinarily lives. Or if the child lives outside of Canada, then the age of majority is 18 years.
  • Custody – this is a term used to refer to anything to do with the care and upbringing of a child. It includes elements of living with the child, as well as providing food and education.
  • Child – the Act speaks about a ‘child of the marriage’; this refers to a child of two spouses or former spouses who at the time of the proceeding under the Act: is under the age of majority and who has not withdrawn from his or her parents’ charge; is the age of majority, or over and is still under his or her parents’ charge but unable, because of illness, disability or some other reason to withdraw from their charge or provide the necessaries of life for themselves.

The Divorce Act also outlines the reasons that someone can ask for a divorce. Such reasons are referred to as grounds for divorce. The Act provides for three grounds for asking for a divorce. These are:

  1. A breakdown of the marriage, established if the spouses have lived separate and apart for at least one year immediately preceding the beginning of the divorce proceedings.
  2. The spouse against whom divorce proceedings are started has committed adultery since the celebration of the marriage; or
  3. The spouse against whom divorce proceedings are started has treated the other spouse with physical or mental cruelty of such a kind as to make living together intolerable.

It must be noted that in as much as the Divorce Act governs divorce, proceedings are set out in each provinces’ Rules of Court.


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