When does a divorce come into effect?

The court sided with the wife and found that because the divorce order was stayed, the husband and wife were never divorced.
The court sided with the wife and found that because the divorce order was stayed, the husband and wife were never divorced. (Photo: iStock)

Is a couple divorced if it was granted but later temporarily put on hold by a court?

That is the question that arose in an Ontario case in which a divorce was actually granted on the husband’s request. However, there was one glitch: the judge who had originally granted the divorce didn’t know that the wife was objecting to the divorce.

Before the divorce had the chance to be finalized, the wife got an order to “stay” the divorce. A stay means that a proceeding is put on hold until a condition the court imposed is fulfilled, or the hold can be indefinite.

While the stay was in effect, the husband died. The question the court was left to decide was whether the marriage had ended through death or divorce.

The question arose because of a dispute between the wife and the husband’s children. The children asked the court to remove the stay and finalize the divorce. The wife asked that her marriage be declared ended because of the death of her husband.

The court sided with the wife and found that because the divorce order was stayed, the husband and wife were never divorced.

The reasoning for the court’s decision rests in the federal Divorce Act.

The part of the act that the court used to explain why the husband and wife weren’t divorced states that:  “a divorce takes effect on the thirty-first day after the day on which the judgment granting the divorce is rendered.”

That means before the thirty-first day, the husband and wife are still married and if one of the spouses dies during those days, the divorce order cannot take effect.

The court in this case used similar reasoning to say that the husband and wife were in a hold period which stopped the divorce from taking effect. When the husband died during the stay, while they were still married, that means the marriage ended through death.

The court ordered a permanent stay of the divorce order.

Find a Lawyer