Deciding to end a marriage is an incredibly difficult decision, no matter what the mitigating circumstances are. Choosing to leave an unhappy or unhealthy marriage can be especially difficult when your spouse wants to try to salvage the relationship. Contrary to popular belief, a divorce can still proceed even if both spouses do not consent to the divorce.
Even if both spouses cannot agree about the topic of divorce, it does not mean the marriage must continue. If just one spouse wants to divorce, that spouse is well within his or her rights to file. However, blindsiding your spouse with divorce paperwork may cause them to feel backed into a corner, setting off a reactive chain of events that can make coming to an amicable resolution almost impossible.
While many consider couple’s counseling or therapy a pathway to fixing a marriage, it can often be a safe place to work through the intense emotions surrounding the issues that lead to a divorce. Seeking the guidance of a qualified professional therapist can help ease both spouses through the transition from marriage to divorce, if the issues in the marriage cannot be resolved.
Work with a Mediator
A mediator, much like a qualified counselor, is a neutral third party that can work with divorcing spouses to resolve outstanding issues, such as child custody and division of assets. Very often, working with a mediator can help a reluctant spouse feel more secure in the fact that their interests are protected. If terms can be agreed upon, these can be incorporated into a separation agreement.
When Your Spouse Still Won’t Agree to a Divorce
In Canada, there are three types of divorce:
Joint Divorce — where both parties jointly file for divorce
Uncontested Divorce — when one spouse files for divorce but the other does not respond within the thirty-day limit. After the expiration of the thirty days, the Applicant — the spouse that filed for divorce — can ask the courts to grant the divorce on the basis that the other party does not oppose it.
Contested Divorce — when one spouse or both spouses cannot or are unwilling to agree about any element of the divorce.
When your spouse contests the divorce, the case will still proceed through family court. A judge cannot block a divorce simply because one party does not agree to it. In some situations, however, spouses seek to obtain a divorce before the remaining issues are dealt with. In these cases, a judge can “sever” the divorce from corollary issues. In other situations, a court will not resolve the divorce issue until such time as other issues are resolved.
The legal test for the severing a divorce is found in both the Divorce Act and in Ontario’s Family Law Rules.
Rule 12(6) of the Family Law Rules states as follows:
(6) The court may, on motion, make an order splitting a divorce from the other issues in a case if,
(a) neither spouse will be disadvantaged by the order; and
(b) reasonable arrangements have been made for the support of any children of the marriage
Assuming that the judge finds that the particular cases passes the test and given that it can take months or even years for spouses to finalize the corollary issues, severing the divorce can resolve an otherwise contested divorce.
It is always advisable to speak with an experienced family lawyer before proceeding with a divorce. For assistance with filing for divorce or separation, or for help resolving outstanding issues, please contact Davies Law Firm at (613) 688-0462 today!