Grounds for Divorce in Nova Scotia: Separation, Adultery, Cruelty

If your marriage is over, one of your first questions may be whether you qualify for a divorce at all. In Nova Scotia, divorce is governed by the federal Divorce Act, which sets one ground and explains how to show it.

This article walks through that ground, the one-year separation rule, the fault-based exceptions, and what the process looks like. It is general information, not advice on your situation.

This article covers the law of Nova Scotia.

The single ground: marriage breakdown

Under the Divorce Act, a court may grant a divorce on the application of one or both spouses on the sole ground that the marriage has broken down. You do not need your spouse to agree that the marriage is over, and you do not need to choose between several grounds.

What the law then asks is how breakdown is shown. There are three ways, and they are set out in the next sections.

The one-year separation rule

The most common way to show breakdown is separation. Breakdown is established if you and your spouse have lived separate and apart for at least one year immediately before the divorce proceeding is determined, and were living separate and apart when it started.

Spouses are deemed to have lived separate and apart for any period when they lived apart and either of them intended to live separate and apart. One spouse's intention is enough.

There is an exception for reconciliation attempts. The one-year period is not interrupted or ended just because you resumed living together for no more than 90 days in total, where the primary purpose was a reconciliation attempt.

Whether spouses who still share a home can count as separate depends on the facts. If that is your situation, ask a lawyer before you file.

Adultery and cruelty

The Divorce Act also lets breakdown be shown without waiting a year if the other spouse has committed adultery, or has treated the applicant with physical or mental cruelty that makes continued cohabitation intolerable.

Note who these grounds are about. They are based on what the other spouse did, and they are for the applicant, so you cannot rely on your own adultery. How you prove either one depends on the evidence you have, and a lawyer can tell you what is realistic.

Does fault matter?

For most people, fault matters very little. You can rely on separation alone, and the court does not need a finding of blame.

In making a spousal support order, the court considers the condition, means, needs and other circumstances of each spouse, including the length of cohabitation and the functions each performed, and misconduct is not to be considered.

The court must also satisfy itself that there has been no collusion in relation to the divorce application. In plain terms, you and your spouse should not be cooking up a false story to get the divorce.

How the process works in Nova Scotia

• Divorces are heard in the Supreme Court of Nova Scotia (Family Division).
• Forms include Form 59.46 (Joint Application for Divorce), Form 59.09 (Petition for Divorce) and Form 59.45 (Application for Divorce by Agreement).
• Where spouses agree on all issues under a joint application, the file can go to a judge without a hearing.
• On a contested petition, the respondent has 15 days to respond if served in Nova Scotia, 30 days elsewhere in Canada, and 45 days anywhere else.
• A divorce takes effect on the 31st day after the judgment is rendered.

What to do next

• Work out the date you began living separate and apart, and whether either of you intended the separation.
• Note any periods you lived together again, and why.
• Decide whether you and your spouse can file together or whether the petition will be contested.
• Gather information about children, support and property, since these are separate issues from the divorce itself.
• Speak with a lawyer before filing if adultery, cruelty or a shared home is part of your situation.

Frequently asked questions