F. Bars to Divorce
Author | Julien D. Payne - Marilyn A. Payne |
Pages | 204-215 |
Page 204
Section 11 of the Divorce Act establishes the following four bars or impediments to divorce:
1) collusion;
2) connivance;
3) condonation; and
4) the absence of reasonable arrangements for child support.182
Page 205
It expressly provides as follows:
Duty of court - bars
11. (1) In a divorce proceeding, it is the duty of the court
(a) to satisfy itself that there has been no collusion in relation to the application for a divorce and to dismiss the application if it finds that there was collusion in presenting it;
(b) to satisfy itself that reasonable arrangements have been made for the support of any children of the marriage, and, if such arrangements have not been made, to stay the granting of the divorce until such arrangements are made; and
(c) where a divorce is sought in circumstances described in paragraph 8(2)
(b), to satisfy itself that there has been no condonation or connivance on the part of the spouse bringing the proceeding, and to dismiss the application for a divorce if that spouse has condoned or connived at the act or conduct complained of unless, in the opinion of the court, the public interest would be better served by granting the divorce.
Revival
(2) Any act or conduct that has been condoned is not capable of being revived so as to constitute a circumstance described in paragraph 8(2)(b).
Condonation
(3) For the purpose of this section, a continuation or resumption of cohabitation during a period of, or periods totalling, not more than ninety days with reconciliation as its primary purpose shall not be considered to constitute condonation.
Definition of "collusion’"
(4) In this section, "collusion" means an agreement or conspiracy to which an applicant for a divorce is either directly or indirectly a party for the purpose of subverting the administration of justice, and includes any agreement, understanding or arrangement to fabricate or suppress evidence or to deceive the court, but does not include an agreement to the extent that it provides for separation between the parties, financial support, division of property or the custody of any child of the marriage.
A finding of collusion constitutes an absolute bar to divorce that compels a court to dismiss the divorce petition regardless whether the divorce is sought
Page 206
on the basis of no-fault separation, adultery, or cruelty.183Collusion will not be found unless there is an agreement or conspiracy to subvert the administration of justice, as for example, where there is an agreement to fabricate or suppress evidence or to deceive the court.184Spousal agreements to separate and to regulate the economic and parenting consequences of their separation are not collusive.185It is also not collusive for one spouse to co-operate with the other spouse by providing evidence that will substantiate the facts relied upon to establish marriage breakdown in the divorce proceeding.186Judicial opinion is divided on the question whether collusion may be found where a marriage was entered into solely for the purpose of obtaining immigration or citizenship benefits and the spouses never intended to cohabit and went their separate ways after the marriage ceremony.187Although section 11(1)(a) of the Divorce Act imposes a duty on the court to satisfy itself that there has been no collusion, the role of the court is not inquisitorial. If the pleadings or evidence justify an inference of collusion, however, it falls upon the applicant to negate collusion and a mere denial of collusion does not discharge the burden of negating collusion.188Where the evidence is clear that the petitioner has been duped and was not a party to an agreement or conspiracy to circumvent the immigration laws of the country, or to any agreement that was collusive, he or she has satisfied any onus placed upon him or her by virtue of section 11(1)(a) of the Divorce Act.189
Connivance190and condonation191constitute provisional, rather than absolute, bars to divorce where marriage breakdown is sought to be proven by way of a spouse’s adultery or cruelty. These bars have no application where the divorce petition is based on spousal separation for one year or more. Being provisional, and not peremptory or absolute bars to divorce, a court will
Page 207
grant a divorce, notwithstanding the petitioner’s connivance or condonation of the other spouse’s adultery or cruelty, if the court is of the opinion that the public interest would be better served by granting the divorce.192Connivance signifies that the petitioner has actively promoted or encouraged the commission of the offence complained of. A corrupt intention is an essential ingredient of connivance. If, for example, the petitioner has actively induced his or her spouse to commit adultery or has passively stood by and made no attempt to prevent the commission of the offence, connivance will be found.193The basic principles of law respecting connivance are succinctly defined in Maddock v Maddock, wherein Laidlaw JA observed:
It will be convenient and helpful to state certain propositions or principles of law respecting connivance, and which I extract from the following and other cases: Rogers v. Rogers (1830), 3 Hagg. Ecc. 57, at p. 59, Gipps v. Gipps (1864), 11 H.L. Cas. 1, Lloyd v. Lloyd, [1938] P. 174, Churchman v. Churchman, [1945] P. 44, Woodbury v. Woodbury, [1948] 2 All E.R. 684, Mudge v. Mudge, [1950] 1 All E.R. 607.
1. Connivance may consist of any act done with corrupt intention of a husband or wife to promote or encourage either the initiation or the continuance of adultery of his or her spouse, or it may consist of passive acquiescence in such adultery.
2. Corrupt intention of the husband or wife seeking a divorce is an essential ingredient of connivance, and the conduct of the husband or wife seeking the divorce must show that he or she, as the case may be, willingly consented to the adultery of the other spouse.
3. The issue is whether on the facts of the particular case, the husband or wife seeking the divorce was or was not guilty of the corrupt intention of promoting or encouraging either the initiation or the continuance of the adultery of the other spouse.
4. Acts done by a husband or wife seeking a divorce or by any person employed by him or her, as the case may be, to keep watch on the other spouse to see whether or not his or her suspicions of adultery are well-founded or unfounded, do not necessarily constitute connivance and, likewise, if one spouse does nothing without lulling into a sense of security, the other spouse about whom he or she, as the case may be, is suspicious, but merely watches her, he is not necessarily guilty of passive acquiescence amounting to connivance.
Page 208
5. "The Court should not allow its judgment to be affected by importing, as principles of universal application, pronouncements made with regard to wholly different circumstances and be led to a conclusion contrary to the justice of the case": Churchman v. Churchman, [1945] P. 44, at p. 52.
6. There is a presumption of law against the existence of connivance and the court should not find a spouse guilty of connivance unless the evidence shows clearly that all the essential ingredients thereof exist in the particular facts under consideration.194In determining whether the public interest would be better served by granting a divorce, notwithstanding the petitioner’s connivance at the of-fence complained of, a court is more likely to excuse passive acquiescence than active procurement of the offence.195Condonation arises where a divorce petitioner, with knowledge of his or her spouse’s adultery or cruelty, forgives the offence and continues or resumes matrimonial cohabitation with the offending spouse. The essence of condonation is spousal reconciliation. Condonation requires a mutual intention to be reconciled coupled with a reinstatement of the guilty spouse to his or her former position.196It is not necessary for spouses to achieve the same degree of mutual devotion that they enjoyed when they were first married. The matrimonial relationship must, nevertheless, be restored to a settled rhythm in which the past offences, if not forgotten, no longer undermine the continued commitment of the spouses to each other.197There can be no condonation of a matrimonial offence unless the innocent spouse has knowledge of all the material facts. It is the duty of the guilty spouse to make full disclosure of any factor that might reasonably weigh with the innocent spouse in deciding whether to remit the offence and reinstate the guilty spouse to his or her former position.198The innocent spouse may, however, expressly or impliedly waive the requirement of further knowledge of any material fact.199Condonation requires a bilateral intention to be reconciled or to resume cohabitation. Although sexual intercourse is a significant factor to be considered in determining whether condonation exists, a continuation or
Page 209
resumption of sexual intercourse is not a prerequisite to a finding of condonation. When the spouses engage in sexual intercourse without the slightest thought of reinstatement, no question of condonation can arise.200Condonation is ordinarily manifested by a resumption of cohabitation that reflects a reconciliation of the spouses. Spousal residence under the same roof is not conclusive evidence of condonation and reconciliation will not be inferred from the mere continuation of an increasingly cold and sexless...
To continue reading
Request your trial