What is a Divorce?
A divorce is the formal legal termination of a marriage. The actual granting of a divorce has fewer legal effects than many people realize. The date of separation with no reasonable prospect of reconciliation is far more important in family law. A divorce simply gives the parties the freedom to remarry and may shorten the limitation period for making property claims, depending on how long after separation it is granted. A divorce also means that if a party dies without a will, their property will not go to their estranged spouse.
In order to be granted a divorce, the parties must have lived separate and apart for one year. The law still allows an earlier divorce if a party wants to claim adultery or cruelty as a ground for divorce, but the difficulty and expense of proving these charges in court means that nearly all people seeking a divorce will simply wait out the year instead.
In the course of seeking a divorce, most separating couples will deal with all other issues relating to separation, namely property division, support (child and/or spousal), and custody/access arrangements for the children of the marriage.
There are certain reasons a court may refuse to grant a divorce, referred to as “bars to divorce”. These are: collusion, connivance, condonation, and failure to provide reasonable arrangements.
Collusion refers to when the parties conspire to lie to the court. A common example would be spouses falsely claiming to have lived separate and apart for a year in order to get a divorce sooner. Connivance and condonation both relate to adultery as a ground for divorce, and are therefore very rarely encountered in modern times.
Failure to provide reasonable arrangements is perhaps the most common reason a divorce is not granted. If courts do not feel the spouses have made reasonable arrangements relating to support for the children of the marriage, they will refuse to grant the divorce. For example, if a couple’s separation agreement does not provide for the payment of child support, the courts will want to satisfy themselves that the children will not be disadvantaged.