Me Pierre-Luc Giroux
A partner at Verreau Dufresne Avocats, Pierre-Luc Giroux focuses his practice on family law, youth protection and the law of persons. Drawing on his litigation experience and his human approach, he supports parents, children and families with rigour, empathy and strategic insight to defend their rights and find solutions suited to their circumstances.
View profileBook an appointmentThe lawyers at Verreau Dufresne practise family law in Québec City and Lévis.
Advice from our lawyers: the situations in which you can apply for a divorce are set out in the law. If you are considering divorce, it is important to assess whether you fall into one of these situations so you don’t waste money and energy.
For various reasons, your marriage is no longer viable and separation has become inevitable. You want a divorce. Not sure how to go about it? There are several options open to you, depending on your situation and the quality of your relationship with your spouse.
1. How do you get a divorce?
You are surely familiar with the saying “till death do us part.” Although the commitment you made to your spouse when you married should not be taken lightly, these words should not be taken literally.
How do you end a marriage? You must apply for and obtain a divorce judgment, under article 516 of the Civil Code of Québec (the “C.C.Q.”). To do so, you must apply to the Superior Court. Only the court can, for certain reasons and if various conditions are met, release you from the marriage and from the duties and obligations this institution imposes on you toward the other person. Until a divorce judgment is obtained, each spouse in theory keeps their duties and obligations, namely respect, fidelity, succour and assistance (article 392 C.C.Q.).
For more information on the divorce process in Quebec or for help with your application, don’t hesitate to contact our family law lawyers.
2. What are the grounds for divorce?
Because marriage is a serious institution, you cannot apply for a divorce for just any reason. You will have to show the court at least one of the following grounds:
First ground for divorce:
The spouses have lived separate and apart for at least one year before the divorce judgment and were living separate and apart when the divorce proceeding was started
Under the law, spouses are bound to live together (article 392 para. 3 C.C.Q.). For spouses to be considered as “living separate and apart,” one of them must have the intention to live separate and apart from the other (section 8(3)(a) of the Divorce Act). For example, it will not be hard to prove your intention if you have moved to another residence. To justify a divorce, this state of “separation” must have lasted at least one year before the date the divorce judgment is rendered.
What happens if you keep living with your spouse during the proceedings? Is it possible to “live separate and apart” under the same roof? Yes. The one-year rule stays the same, but you will have to give the judge details showing your intention to live separate and apart. Here is a list of factors that can lead to a finding of “separation” even though the other spouse lives under the same roof:
- You sleep in separate rooms;
- You no longer have sexual relations;
- You no longer talk to each other, or contact is brief;
- You no longer do things for each other;
- You eat your meals separately;
- You no longer have a shared social life;
- You go out separately;
- You no longer share expenses as before, and each of you manages your own budget separately rather than jointly.
Not all the criteria on this list need to be met for a finding of separation, but a single indicator is not enough. Each case is unique and must be analyzed by the judge. For example, the fact that you no longer have sexual relations is not, on its own, decisive in establishing the intention to live separate and apart.
Second ground for divorce:
One of the spouses has committed adultery
If your spouse has committed adultery, you can start the process to apply for a divorce. But what is adultery? It is defined as a breach of the duty of fidelity imposed by marriage (article 392 C.C.Q.), that is, “as soon as voluntary sexual relations take place with a person other than the spouse” (our translation).
You cannot rely on this ground if you have committed adultery yourself. As the saying goes, “no one may rely on their own wrongdoing.” Only the other spouse must have committed this act to justify an application for divorce.
Third ground for divorce:
One spouse has treated the other with physical or mental cruelty of such a kind as to render continued cohabitation intolerable
“Cruelty” is defined as the desire to make the other spouse suffer, or showing pleasure in or indifference to their grief and pain. If your spouse behaves in a way that inflicts on you “gratuitous, malicious or unnecessary pain or physical or emotional suffering” (our translation), this behaviour is mental or physical cruelty and justifies the other spouse filing an application for divorce.
For example, if your spouse tries to humiliate and control you by repeatedly saying hurtful things to you, this could be mental cruelty that opens the door to a divorce. Here again, you cannot rely on this ground if you yourself have treated your spouse with physical or mental cruelty.
Does one of these situations sound like yours? Contact our family law lawyers for help.
3. Amicable divorce
More and more spouses are divorcing in a spirit of cooperation and respect. If this is what you want, it is possible to reach an agreement and apply jointly for a divorce. To do so, certain conditions must be met.
First, you must apply to the Superior Court and file a joint application for divorce with the other spouse. In principle, the ground relied on in a joint application should be limited to separation for more than one year. According to some decisions, spouses therefore cannot file a joint application for divorce when the ground relied on is adultery or mental cruelty. However, some judges have allowed spouses to rely on these grounds when only the spouse who is not at fault files the application and the other spouse admits the situation.
Note that even if you and your spouse have not yet been separated for more than a year, it is still useful to contact one of our lawyers so that work can begin as soon as possible on the various divorce documents required by law.
To file a joint application for divorce, the spouses must then reach agreements on all the “consequences of the divorce” (article 430 of the Code of Civil Procedure). This includes, in particular, the partition of the property that makes up the family patrimony, support and child custody. If you cannot agree on any one of the consequences of the divorce, you will not be able to file a joint application. For more information on the consequences of divorce, we invite you to read our article The Consequences of Divorce.
In a joint application for divorce, the spouses consult a lawyer together. The lawyer’s role is to give the spouses legal advice in a neutral way, without favouring one spouse’s position over the other’s. Once a final agreement is reached, the lawyer will draft the agreement, the joint application for divorce and the other necessary documents.
Contact us
Don’t hesitate to contact our family law lawyers to get legal services suited to your situation. Among other things, our professionals can:
- Analyze your situation and give an opinion on the validity of your grounds for divorce;
- Give you a straight answer about your rights and your chances of success;
- Draft your application for divorce, for yourself alone or jointly for you and your spouse;
- Draft your defence, if you have received an application for divorce filed by your spouse;
- Present an application for a safeguard order or provisional measures;
- Prepare your evidence (documents and witnesses);
- Represent you before the courts in a dispute involving your divorce;
- Negotiate an out-of-court settlement with your spouse when possible.
Note: The information above is general in nature and does not constitute legal advice. For advice on your particular legal situation, feel free to contact one of our lawyers in Québec City or Lévis.
