Barriers to Divorce
Introduction
Divorce, a legal termination of marriage, is a process fraught with complexity and emotional turmoil. Unlike popular perception, it is not simply a matter of signing a few papers and parting ways. There are significant legal barriers that can potentially impede the process of obtaining a divorce. This comprehensive blog post will dissect and examine the four statutory impediments to divorce as delineated in s. 11 of the Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.). These hurdles include collusion, condonation, connivance, and the necessity for reasonable arrangements for the support of the children.
Collusion
Collusion, in the context of divorce, is defined within the Divorce Act as an agreement or conspiracy where the applicant for divorce is an active participant, with the express intent to undermine the administration of justice. This is a grave concern, and if collusion is established, it acts as an absolute bar to divorce. In such cases, the court is left devoid of any discretion on the matter, underscoring the severity of this act.
Condonation
Condonation is an intriguing concept that refers to a situation where one party appears to have forgiven the other party's misconduct, and therefore, that misconduct cannot be employed as a basis for a divorce. There are three critical elements to condonation:
Knowledge of the misconduct: The party claiming condonation must have known about the misconduct of the other party.
Reconciliation after the misconduct: After becoming aware of the misconduct, the parties must have reconciled and resumed their marital relationship.
Behaving like a normal married couple: Despite the misconduct, the couple must have carried on their relationship like any normal married couple would.
If condonation can be established, it prohibits the accusing spouse from alleging a breakdown in the marriage due to adultery or cruelty.
Connivance
Connivance is a more intricate concept. It involves a spouse either actively or passively encouraging the other to commit adultery or cruelty. Unlike collusion, connivance does not necessarily act as an absolute bar to divorce. The court retains the discretion to grant a divorce despite the presence of connivance if it is in the public interest to do so.
Reasonable Arrangements for Support of Children
In cases where the marriage has resulted in children, the court will not grant a divorce unless they are satisfied that there are reasonable arrangements in place to support the children. If the court deems the proposed arrangement unreasonable, the divorce will be stayed until an acceptable arrangement is made. This requirement ensures that the interests and wellbeing of the children are not compromised due to the divorce.
Conclusion
To conclude, the journey to divorce is rarely a straightforward one. There are legal barriers in place, including collusion, condonation, and connivance, that can make the process more convoluted. More importantly, if there are children involved, the court must be satisfied with the provisions made for their support. These barriers are designed to ensure fairness, uphold the integrity of the judicial process, protect the interests of all parties involved, particularly children, and emphasize the gravity and finality of the decision to divorce.
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