Sometimes, divorce is the result of unexpected trauma in a marriage--often from outside sources. You may find yourself caring for a spouse that is physically, mentally, or emotionally dependent on you. Eventually, this uneven yoke takes its toll and the marriage disintegrates; you may no longer wish to be in a situation where your spouse is fully dependent on you for personal support. While you can seek divorce, you should be hesitant to make any drastic changes in your life before speaking with an expert in family law, lest you act rashly and be found guilty of criminal charges due to desertion.
What is criminal desertion?
As a married person, you are still under obligation to perform social, public, and family duties. These may include caring for children with your spouse and providing (when possible) for medical care or special needs. If you simply choose to leave the situation, possibly to find freedom from the unexpected pressures, and you cannot provide proof of exigent circumstances which demanded you to leave (such as work or a threat to your own life), you will be found in breech of that duty.
Generally, courts expect spouses to meet financial obligations and provide needed care to children. If you leave, and a child or a spouse is physically harmed as a direct result, you would be charged with neglect/failure to provide.
What steps should be taken instead?
You certainly do not have to continue to live in a situation that is creating intense stress for you. However, instead of leaving immediately, you can talk with your lawyer about:
- filing for divorce. In Canada, there should be grounds for divorce. Adultery, separation, abuse, or even lack of marital intimacy are all admissible in court. Since the Divorce Act (1968), courts have been much more lenient about divorce grounds. Your spouse who depends on your support may contest the divorce, which can prolong the procedure. However, once you have filed for divorce, you have made an attempt to legally separate yourself from the situation, which will become justification for leaving.
- moving out, but staying close by, while continuing to show financial support for the family. If you are struggling to have your divorce go through in a timely manner, moving out, but staying involved, shows that you are still willing to support your children. After a year of living apart, a divorce is very easy to obtain, even with no other reason provided.
- filing for a legal separation. If you aren't ready to take the step to divorce, especially if you have children involved, you can become legally separated from your spouse. This absolves you of many financial duties, including personal debt incurred by your spouse. You will, of course, still be required to pay child support if you have children and were a breadwinner before the separation took place.
- setting up an alternate form of care for your spouse before leaving. For example, if you spouse has a relative, reach out to that relative and explain that your household needs additional support from other family members. This can serve as proof in court that you were unable to carry the burden alone and that you made an attempt to provide for the needs of your spouse before leaving.
You should also consider taking legal action before leaving the home because in the case of willful abandonment, your possessions that are left behind are often considered the property of the remaining spouse. If you have things that you would like returned to you, including your house and other shared property, it is better to pursue legal separation options. If you return to the property after the standard abandonment period has passed, you could be charged with trespassing.
When you are in a difficult living situation with an increasingly dependent spouse who is unable to uphold the burden of the home, you can take legal action. Talk to a lawyer today to learn the best way to bring relief into your life, without any added legal trouble.
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