- In British Columbia, only the Supreme Court of British Columbia can grant a divorce, and the court grants it if the marriage has broken down and the other legal requirements are met.
- Breakdown is the only ground for divorce, and it is shown by one year of separation, adultery or cruelty.
- Whether a marriage was valid in the first place is a separate question that turns on your facts, so get legal advice before you choose a path.
You may be wondering whether your marriage can be treated as if it never properly existed, rather than being ended by divorce. People ask this when something about the wedding, the paperwork or the other person's situation seems wrong.
This article explains how a divorce works in British Columbia so you can see what it does and what it requires. Whether a marriage was valid at the start depends heavily on the facts, and a lawyer can confirm where you stand.
This article covers the law of British Columbia.
What a divorce does
In British Columbia, only the Supreme Court of British Columbia can grant a divorce, and it grants one if the marriage has broken down and the other legal requirements are met. Once a divorce is in effect, it dissolves the marriage and has legal effect throughout Canada.
Separating and divorcing are different things. You can separate without any court step, but you must have a divorce order if you want to remarry.
The legal test for a divorce
The Divorce Act allows a court to grant a divorce on the ground that the marriage has broken down, and this is the only ground. Breakdown is established in one of two ways.
| Way to show breakdown | What it requires |
|---|---|
| Separation | The spouses have lived separate and apart for at least one year immediately before the divorce proceeding is determined, and were living apart when it started. |
| Adultery or cruelty | The spouse the proceeding is brought against has committed adultery or treated the other spouse with physical or mental cruelty that makes continued cohabitation intolerable. |
Adultery or cruelty is an alternative to the one-year separation, and the one-year wait does not apply when that ground is proven. It must have been committed by the spouse against whom the proceeding is brought.
Other requirements the court checks
- Residency: either spouse has been habitually resident in British Columbia for at least one year immediately before the proceeding starts, and only one spouse needs to meet this.
- Children: the court must be satisfied that reasonable arrangements have been made for any children of the marriage, including child support.
- No collusion: the court must satisfy itself that there has been no collusion in relation to the application.
If you doubt the marriage was valid
A divorce assumes there was a valid marriage to end. If you think the marriage was never valid, for example because of how it was entered into, that is a different legal question from the ones above. The answer depends on the circumstances, including where and how you married, and it is worth confirming with a lawyer before you file anything.
How this applies depends on your situation, so it is worth confirming with a lawyer. Once the marriage is confirmed to be valid and you go ahead with a divorce, the court must be satisfied that reasonable arrangements have been made for any children of the marriage, including child support, before it grants the divorce.
What to do next
- Gather your marriage certificate or registration, and note when and where you married.
- Write down the date you separated and whether you have lived apart since.
- List your children and any arrangements for parenting and support.
- Talk to a lawyer about whether your marriage is valid before you choose between the options.
- If you are handling things yourself, free help is available through Family Justice Centres, Justice Access Centres, the Parenting After Separation course, the BC Legal Referral Service and Legal Aid BC.
Frequently asked questions
Can I get a divorce right after I separate?
You can apply at any time after separating, but the court will not grant a divorce on the separation ground until you have been separated for at least one year. Adultery or cruelty is an alternative ground that does not require the one-year wait.
Do I need a divorce to remarry?
Yes, you must have a divorce order if you want to remarry. You also cannot remarry until 31 days have passed after the order is granted, unless the court orders the divorce to take effect earlier because of special circumstances and the spouses agree not to appeal or any appeal has been abandoned.
Who can grant a divorce in BC?
Only the Supreme Court of British Columbia can grant a divorce.
How do I know if my marriage was valid?
That depends on the facts, such as where and how you married. A lawyer can review your situation and tell you which route fits.
Sources
- Province of BC – What do I need to know about getting a divorce? — www2.gov.bc.ca
- Divorce Act (R.S.C. 1985, c. 3 (2nd Supp.)), s. 8 — Justice Laws (federal)
- Divorce Act, s. 3 — Justice Laws (federal)
- Divorce Act, s. 12(2) — Justice Laws (federal)
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
This is a family law question
An uncontested divorce with us is from $2,126.88, tax included. Third-party fees are extra.