Can You Divorce in BC for Adultery or Cruelty?

If your spouse has been unfaithful or has mistreated you, waiting a year to divorce can feel unfair. The Divorce Act does allow a faster route in some situations, but it comes with conditions.

This article explains what the Act says about adultery and cruelty, how it differs from the separation route, and what to think about before choosing it.

This article covers the law of British Columbia.

Breakdown is the only ground

The Divorce Act has one ground for divorce: breakdown of the marriage. Fault is not a separate ground. Instead, adultery and cruelty are two of the ways the Act says breakdown can be established.

The Act says breakdown is established only if the spouses have lived separate and apart for at least one year, or if the spouse against whom the proceeding is brought has, since the marriage, committed adultery or treated the other spouse with physical or mental cruelty that makes continued cohabitation intolerable.

Skipping the one-year wait

Adultery or cruelty is an alternative to the one-year separation, and the one-year wait does not apply when this ground is proven. The key condition is who did it: the act must be committed by the spouse against whom the divorce proceeding is brought.

That means you cannot rely on your own conduct to obtain a divorce. If you are the person who committed the adultery, this ground is not available to you.

What the Act asks you to show

• For adultery, that the responding spouse has committed it since the marriage.
• For cruelty, that the responding spouse has treated you with physical or mental cruelty that makes continued cohabitation intolerable.

The Act sets these tests but the kind and amount of evidence a court will accept depends on the facts and the type of case. A lawyer can tell you whether what you have is likely to be enough, and whether it is practical to prove.

Other things the court checks

The court must satisfy itself that there has been no collusion in relation to the application. Subject to a public-interest exception, it must also be satisfied there has been no condonation or connivance by the spouse bringing the proceeding. In plain terms, spouses should not stage or arrange grounds between themselves.

The court must also be satisfied that reasonable arrangements have been made for any children of the marriage, including child support. A divorce takes effect on the thirty-first day after the day the judgment granting it is rendered. The court may order it to take effect earlier if there are special circumstances and the spouses agree not to appeal or any appeal has been abandoned.

If you do not want to prove fault, you can still rely on the separation route. You can apply at any time after separating, but the court will not grant a divorce on that ground until you have been separated for at least one year.

What to do next

A divorce is started by filing a Notice of Family Claim (Form F3) in the Supreme Court registry. The claimant must then serve it on the respondent personally unless the court orders otherwise. A person who is not a party and is at least 19 years of age must do the serving, not you. The respondent has 30 days after being served to file a response.

• Write a clear timeline of what happened and when.
• Keep records, messages or other material that relate to your claim, and keep them safe.
• Think about whether proving fault is worth the effort compared with waiting out the separation period.
• Talk to a lawyer about your evidence before you file.
• If you are in danger, get safety help first.
• Look into free help such as Family Justice Centres, Justice Access Centres or Legal Aid BC.

Frequently asked questions