I want a divorce, but my spouse does not. What happens next?

Wife talking to her husband about divorce over coffee

When you and your spouse got married, you were both equally excited about starting a new life together. You certainly were not expecting that love to ever fade. However, the reality is that many marriages end in divorce. You have realized now that the love you used to have towards your spouse is no longer there, and you want to get a divorce. But what happens when your partner does not feel the same way? What if your spouse does not want a divorce and refuses to believe the relationship is over?

Under Canadian law, you do not need your spouse’s consent to get a divorce – although this does make the divorce process more difficult. In this article we will break down your options and what to do if your spouse refuses to sign the divorce papers.

According to the Divorce Act, the breakdown of a marriage is established only if:

  1. The spouses have been living separately for at least one year
  2. A spouse has committed adultery
  3. A spouse has physically or mentally abused their partner

Once one of these has occurred in your relationship, then you are eligible for a divorce. In Canada, there are three different types of divorce:

  1. Joint Divorce: This is where one spouse files the divorce application with their partner.
  2. Uncontested Divorce: This when one spouse files for divorce, but the other spouse does not respond to it in court within 30 days. When that time expires, the applicant can request that the court grants the divorce order. The court is then allowed to assume that the other spouse either agrees to the divorce or does not care.
  3. Contested Divorce: This is where one spouse applies for divorce, and the other does not consent to the terms of the divorce.

So, regardless of whether your partner is on the same page about wanting a divorce or not, it is still possible to get a divorce. You will just need to be able to prove the breakdown of the relationship. If you can not find your spouse, you can still file an application for divorce. But you will need to be able to show that you have done everything in your power to find your spouse.

The court won’t allow you to obtain a divorce unless the issue of child support has been resolved. If proper child support according to the child support guidelines is not being paid, the judge is unable to grant a divorce. Even if you and your spouse agree to deviate from the guidelines, the judge will not grant a divorce unless you can prove you have some other arrangement which is the equivalent to pay child support in the traditional sense. For example, if you are taking over some extra debt for your spouse instead of paying child support, you may be able to get a divorce.

It can be extremely difficult to divorce someone who does not want a divorce. They may put up roadblocks. However, trying to divorce someone reluctant to make the process easy could end up costing you a lot of time, money, and sanity in the long run. There are a few things you can do to help you simplify the process and possibly even get your partner to agree with the divorce while you are at it.

Seek professional advice

Divorces are stressful and set off a variety of different emotions for both parties. Particularly when someone is not expecting to hear their spouse tell them ‘I want a divorce’. For many, those are the four most devastating words a person may hear in their lifetime. That is why it is a good idea to seek advice from a professional therapist or counsellor to help you through this difficult time. Both you and your spouse will benefit from their help.

Speaking with a third party can help you and your spouse gain the confidence you need to start having rational conversations. Without judgment, you and your spouse can talk about your relationship and how to end it peacefully. Even if there is a chance both you and your spouse could make it work, couples therapy could help you resolve the issues in your relationship. If your spouse does not want a divorce but is willing to seek counselling, this can give you both a safe space to discuss your feelings.

Be compassionate and be open to communication

Again, hearing that your spouse wants a divorce can be overwhelming, so try to put yourself in your partner’s shoes. Try to brace yourself for a range of different emotions that your spouse may show. There is a good chance that you have been debating divorce for a long time, so you have had more time to become accustomed to the idea. Your spouse on the other hand may not have ever even thought about it. Give your partner time to think about your decision and give them time to process their emotions as well. Remember to be as compassionate as possible and to prepare yourself for your spouse’s reaction. Your goal is to start the conversation as openly and honestly as possible, which will help your situation greatly.

Allow your partner to process your decision 

People often receive the news of their divorce similarly to grieving a loss of a family member or friend. In many ways, they are losing someone they love. Initially, they may be in shock and unable to process it. Again, you have had plenty of time to process that your marriage is ending, your spouse has not. Allow them the time to grieve and navigate their initial emotions.

Find out why your spouse is reluctant to divorce 

Going back to open communication, if you want to understand why your spouse does not want to get a divorce, you need to talk to them. Ask them questions and try to see things from their point of view. There are a few reasons why someone may want to make their marriage work. In which case, you need to hear them out and explain your point of view on why you think divorce is the better option.

Some spouses feel that divorce is worse for their kids than staying together. Others feel that they can save more money if they stick out their relationship. Whatever their reasoning is, you need to listen to their opinions and share your views on why divorce will be healthier for everyone in the long run.

This is much easier said than done, of course. Arguments may arise and things can get heated. If you and your spouse are having a difficult time reasoning with one another, consider external help from counselling or a mediator.

If you are 100% set on getting divorced, you need to explain to your spouse that you both will need to work together. If you do not work together you could end up going to family court and straining the process more than you need to. Show him or her the positives of why you should get divorced and how it will be better for you, your spouse, and your children (if you have them) in the long run.

Work with a professional divorce lawyer

Overall, try to remain as understanding as possible. Divorce is not an easy topic of conversation, especially if your spouse is surprised by your decision. If you are unsure, work with a marriage counsellor to see if it is possible to repair your relationship.  If you are ready to take the next step and file for divorce, we can help you at Galbraith Family Law. Not only can we represent you, but we can also help ease the divorce process for you as much as we possibly can. To work with one of our professional divorce lawyers, give us a call at one of our five locations across Ontario. For our Toronto offices call 647-370-8965, for our Newmarket office call 289-210-4692 or you can reach us at our Barrie office at 705-230-2734. Remember, we are here for you, and we are here to help resolve your family law issue with heart while keeping you out of court whenever possible.

Brian Galbraith

Brian Galbraith is the owner and founder of Galbraith Family Law Professional Corporation. Brian is known in the legal community for his commitment to efficiently practicing family law using technology and streamlining the divorce processes.

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