Rule 12(6) of the Family Law Rules allows a court to make an order splitting a divorce from the other issues in a case if
neither spouse will be disadvantaged and
reasonable arrangements have been made for the support of any children of the marriage.
The case law on when a divorce can be severed was recently reviewed in Baginski v Baginski. In this case, the parties had a separation agreement that allowed the wife to seek an uncontested divorce. The agreement also had a clause that the wife would provide medical insurance benefits coverage for her husband as long as it was available to her. The benefits coverage would end once the parties divorced.
After signing the separation agreement, the wife brought a motion for an order severing the divorce from the only other issue of parenting. The husband opposed the severance on the basis that he would be disadvantaged because of the loss of benefits coverage. The court reviewed the jurisprudence on whether the wife was entitled to sever the divorce.
In Al-Saati v Fahmi, the court held the word “disadvantaged” in Rule 12(6)(1) meant a legal disadvantage that the responding party may suffer if the severance was granted. In Mullins, Justice Emery noted the weight a court should give to a loss of insurance coverage as a disadvantage depends on the evidence of the particular case.
What Does This Mean?
From the jurisprudence, severance is granted on the particular evidence of each case. The court will assess whether the other party would suffer a legal disadvantage from the severance. A legal disadvantage is not found if the right is waived by the other party.
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