The Divorce Act allows married couples to divorce under one of three grounds – all of which fall under the term “breakdown of the marriage.” These three grounds are:

• Living separate and apart for a minimum of one year
• One spouse has committed adultery
• Physical or mental cruelty inflicted on one spouse by the other

In the vast majority of cases, the parties use the ground of living separate and apart for one year as the basis for their divorce. In these cases, neither party is required to show that the other person caused the marriage to break down.

Furthermore, the parties don’t actually have to live in separate households to be considered living separate and apart. Separation can be shown by each person having his or her own bedroom or sleeping arrangements even if the parties still occupy the same residence – a situation that sometimes occurs when the parties don’t have the financial resources to physically live in two separate households.

Adultery and Cruelty

Unlike living separately, the grounds of adultery and physical and/or mental cruelty require the spouse claiming the divorce should be granted on these grounds to provide evidence they occurred. It’s also important to note that the spouse who committed the adultery or engaged in cruel behaviour toward the other spouse can’t bring a divorce action under these grounds.

As a practical matter, comparatively few people choose to divorce under grounds of adultery or cruelty, even if one spouse’s adultery or cruelty actually caused the marriage to break down. Because gathering sufficient evidence of these acts can be costly, time-consuming, or a source of embarrassment, it’s usually much more straightforward to use a one-year separation as the basis for a divorce.