Experiencing a divorce can be a distressing and emotional time for all parties involved. There are many areas to think about, for example, child custody and spousal support, or division of assets. Some cases run smoothly and there is minimal time spent in court. Other circumstances are more complex and need a greater deal of attention. In certain situations, you may need to ask the court to postpone the granting of a divorce.
In this post, we’ll look at some example cases that have involved postponing a divorce.
Firstly, the Continuing Legal Education materials state:
There is only one ground for divorce: breakdown of the marriage (Divorce Act, s. 8(1)). If one of the factors set out in s. 8(2) is met, a breakdown of marriage is established:
(a) the spouses have lived separate and apart for at least one year immediately preceding the
determination of the divorce proceeding and were living separate and apart at the commencement of the
proceeding; or
(b) the spouse against whom the divorce proceeding is brought has, since the celebration of the marriage,
(i) committed adultery, or
(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the
continued cohabitation of the spouses.
The section gives no preference to one factor over another, although in practice the court may grant a divorce on the basis of the spouses having lived separate and apart for one year, even though other indicia of marriage breakdown is present (Rice v. Rice (1995), 17 R.F.L. (4th) 328 (B.C.S.C.)).
The Court can postpone the granting of a divorce, even when the grounds for divorce exist if the divorce would prejudice the rights of one of the parties. Examples: the wife’s dowry and support claims in India would be prejudice by the divorce (Bhullar v. Bhullar); a spouse would lose her status in the husband’s Indian Band (Darbyshire-Joseph v. Darbyshire-Joseph, [1998] B.C.J. No. 2765 (QL) (S.C.)); and the division of assets, including tax consequences on the transfer of company shares and the loss of her status under the Wills Variation Act would prejudice the wife (Kirk v. Kirk, 2007 BCSC 67).
In a case called Abijero v. Quismundo, 2012 BCSC 1394, the court held that the wife’s desire to resolve corollary issues and her allegation that her husband would leave the jurisdiction if a divorce was granted was not justification to withhold divorce, as no prejudice to her would result.
In Sharma v. Sharma, 2016 BCSC 153, the court noted that if a divorce would prejudice a party in relation to potentially similar claims before another country’s court, the divorce might be withheld. However, in this instance, the court refused to withhold the divorce on the basis that the husband was contesting the divorce application as a means to force his wife to settle or withdraw an unrelated claim.
If you’re thinking of postponing a divorce, we recommend discussing this with a family lawyer. At Dreyer and Associates, we have extensive experience in divorce and always seek to get the best outcome for our clients.
