Approximately 18 days later, the world was once again shocked by the singer-songwriter, when on December 26, 2011; she announced that she would be ending her marriage to Herridge as a result of pressures placed upon him by individuals in his life who did not want to see the couple together.

The singer was deeply hurt and revealed on her website and twitter that she was still enamored of Herridge, like her 1990 global hit “Nothing Compares 2 U.”  O’Connor and Herridge were spotted together, walking arm-in-arm on January 4, 2012, after leaving an Irish pub.  In addition, O’Connor has once again taken to the “twitterverse” to profess her undying love and devotion to her husband.  On January 3, 2012 she posted: “[…] Yay!!! We decided to be boyfriend and girlfriend again and stay married […].”

Throughout her life, her music has been a critical success while her personal life has been marked by difficulty and scandal.

O’Connor’s past includes shoplifting and truancy in her teenage years. Her mother was killed in a tragic car accident when O’Connor was 15. She has been diagnosed with fibromyalgia, bipolar disorder, and attempted suicide on her 33^rd birthday. She has been married three times prior to her marriage to Herridge.

On Friday, January 13, 2012 the troubled artist ended her marriage to Herridge a second time.

What effect, if any, will O’Connor’s and Herridge’s on-again, off-again marriage have on any future claims she may make for a divorce?  Has the clock stopped running?  Will their date of separation change?

If the couple were married in and resided in Ontario, the following laws would apply:

Firstly, Sinead O’Connor could bring an application under s. 8(1) of the Divorce Act for an Order for Divorce.  Provided she satisfied the elements under s. 8 (2) regarding breakdown of marriage the court would be at liberty to grant said Order.  Breakdown of marriage would be established if O’Connor could establish any of the following:

1. Her and Herridge lived separate and apart for one (1) year;
2. Adultery; or
3. Physical or mental cruelty

If she were to bring her application and state one (1) year separation as the reason for the breakdown of her marriage, she would then have to look to s. 8(3) of the Divorce Act for the calculation of the period of separation.  Based on s. 8(3) a couple will be deemed to have satisfied the one (1) year period if:

1. Either of them had the intention to live separate and apart from the other; and
2. The spouses did not resume cohabitation for a period exceeding ninety (90) days.

Therefore, since O’Connor and Herridge’s brief reconciliation did not meet or exceed the ninety (90) day period then when filing her Application for Divorce and other necessary and relevant documents, she would be at liberty to state that December 26, 2011 was her effective date of separation.

According to the Times of India (I read a lot) Lopez and Anthony, who separated back in July after seven years of marriage are working towards negotiating a settlement before filing for divorce. There’s a lot at stake, but if you have the time and patience (and if you can stand to be in the same room as the person you are separating from) then negotiating a resolution in an amicable fashion, without using the Courts, can be mutually advantageous.

In Ontario, particularly in the Central East Region, the Court are very backed up, so separating couples often need to wait months before they can attend their first substantive Court date – which is usually a Case Conference. In the interim, negotiations and settlement meetings are encouraged to help narrow down the issues between the parties. In the event that the parties do end up in Court, in Ontario anyway, judges look favorably on those who make serious attempts to resolve their issues prior to pursuing litigation.

While there are a lot of assets to deal with in their matter, one big hurdle they have climbed is that they have agreed on their date of separation. That makes dealing with the financial aspects of the divorce a lot easier.

In Ontario, divorcing spouses generally equalize their net family property. The net family property calculation, in simple terms, is as follows: take the value of all assets owned by a party as at the date of separation (other than excluded property, for example a gift received from a third party during the marriage); subtract all liabilities as at the date of separation; and subtract your net worth as at the date of marriage (which does not include the value of the matrimonial home). The balance is an individual’s net family property. The spouse with the lower net family property receives half of the difference between each person’s total net family properties.

With J-Lo and Marc Anthony, we are probably looking at some hefty numbers. They own several homes and businesses, and they are also minority owners of the Miami Dolphins, who recently fired coach Tony Sparano.

Sources say once the former couple works out the property and asset division, they will file for divorce in California, because you can file for divorce there without placing any party at fault—the so-called “no fault” divorce. The divorce would be legally finalized six months after they file.

In Ontario, we also have no fault divorce, but it is just referred to using different terminology. In order to finalize a divorce, a couple has to be “living separate and apart for one year.” The difference then becomes the time it takes to finalize the divorce. In Ontario, you must wait a full year after filing an Application for divorce before it is final.

Under California law, fraud represents one of several valid grounds for an annulment. Others include, but are not limited to: bigamy; incest; force; or if the couple are under the age of consent.

To clarify, an annulment essentially voids a marriage, making it as if that previous marriage had never occurred.

A divorce, on the other hand, terminates a marriage and the legal rights and obligations that occur as a result of the union of two individuals.

In Ontario, an annulment is not easily obtained. To be successful, an individual seeking an annulment must prove to the court that some defect or disability existed at the time of the marriage ceremony, and as such, prevented the marriage from coming into existence. The proper procedure to follow is to apply to the court and show that there was a defect in either the “formal validity” or “essential validity” of the marriage.

A defect in the “formal validity” refers to a legal defect in the marriage ceremony, due to the fact that the individuals wanting to marry failed to comply with the provincial rules regarding formalities of ceremony. For example a defect could be that the individuals did not publicize their banns, their marriage was solemnized by an individual not authorized to do so, or there was in irregularity in the issuance of their licence.

A defect in the “essential validity” generally means that one of the two individuals entering into the marriage lacked the proper capacity to do so, and as such, the marriage is void. Generally, a defect in the essential validity of a marriage may consist of the following:

• An inability to consummate the marriage;
• The parties are within the prohibited degrees of consanguinity or affinity as defined in s.2 and s.4 of the Marriages (Prohibited Degrees) Act (in other words, the spouses are too closely related by blood/genetics);
• One of the individuals has a prior-existing marriage;
• age; or
• one of the individuals lack the appropriate consent due to:

1. mental incapacity;
2. duress;
3. fraud; or
4. mistake

Based on the high threshold that must be met in order to obtain an annulment, it is rare that they are granted. This being the case, it seems that Kris Humphries may be out of luck!

According to TMZ.com, Aikman and his now ex-wife Rhonda were granted an Order for divorce on April 12, 2011.  Their separation was public knowledge, and they even released statements regarding their commitment to their two children back in January 2011.

But just how committed, financially speaking, does someone of Mr. Aikman’s ilk have to be?

Imagine for a minute that Mr. Aikman and Rhonda were residents of Ontario and Canadian citizens and that their proceedings were started in Ontario.

Calculating child support in Ontario is regulated by the Federal Child Support Guidelines, which enclose a Table that prescribes monthly child support payments, based on the income of the paying spouse and the number of children he or she is responsible for supporting.  The range of annual income accounted for on the Table is $8,000.00 to $150,000.00.

For Mr. Aikman, this presents an issue for paying child support, as his annual income, while not as high as it used to be, is likely much more than $150,000.00 annually.  He is the lead color commentator for FOX NFL Sunday and is involved in several football-related promotions throughout the year.  He is also the principal owner of Direct Development, a commercial retail real estate development company, and a minority owner of the San Diego Padres professional baseball team.

Section 4 of the Federal Child Support Guidelines reads as follows:

Incomes over $150,000

4. Where the income of the spouse against whom a child support order is sought is over $150,000, the amount of a child support order is

(a) the amount determined under section 3; or

(b) if the court considers that amount to be inappropriate,

(i) in respect of the first $150,000 of the spouse’s income, the amount set out in the applicable table for the number of children under the age of majority to whom the order relates;

(ii) in respect of the balance of the spouse’s income, the amount that the court considers appropriate, having regard to the condition, means, needs and other circumstances of the children who are entitled to support and the financial ability of each spouse to contribute to the support of the children; and

(iii) the amount, if any, determined under section 7.

The Table amount for two children at $150,000.00 annually is $1,992.00 per month.  Assuming Mr. Aikman has an annual income of $300,000.00 and the Court considers $1,992.00 to be inappropriate, then the monthly support payment will be increased according to the following formula:  $1,992.00 plus 1.16% of income over $150,000.00.  Therefore, Mr. Aikman would pay an additional $1,740.00 per month.  These figures do not include his contribution towards the special and extraordinary activities of the children such as soccer, dance, or swimming.

Meanwhile, Rhonda recently purchased a $1.5 million home in Texas, so there may be some question as to whether the needs and circumstances of the children truly require money on top of what the Table prescribes. However, the Courts generally stick to the Table formula and therefore prescribe the full Guidelines amount until the paying spouse’s annual income gets into the multi-millions.

Spousal support and property in this case could also be interesting, but they are topics for another blog.

Kim Kardashian filed for divorce citing “irreconcilable differences,” listing the date of separation as October 31, 2011. In addition, Kim Kardashian revealed, according to an article on People.com, that prior to their nuptials, the couple signed a pre-nuptial agreement and that she will not be making any spousal support payments to Kris Humphries.

However, what if a pre-nuptial agreement did not exist and the couple’s property was subject to division and equalization? Moreover, what if the couple resided in Ontario? Are there any laws currently in place that could prohibit Kris Humphries from sharing in the Kardashian Empire?

In Ontario, when one speaks of division of property, Part I of the Family Law Act is looked to and applied using the requisite and necessary definitions and calculations that must be used in order to arrive at a determination of the parties’ respective net family properties and subsequent equalization payments owing. Generally, an equalization payment is one-half the difference of the parties’ net family properties which is then given to the party with the lower net family property.

For ease of reference, “net family property” is defined as the value of all the property that a spouse owns on the date of separation, after deducting the spouse’s debts and other liabilities, and the value of property, other than a matrimonial home that the spouse owned on the date of the marriage, after deducting the spouse’s debts and other liabilities, other than debts or liabilities related directly to the acquisition or significant improvement of a matrimonial home, calculated as of the date of the marriage.

However, there are certain situations where an unequal division of property is warranted. In order to determine whether or not she qualifies for this, and if she were residing in Ontario, Kim Kardashian would need to look to s. 5(6) of the Family Law Act, which gives the court the discretion to award an amount that is more or less than half the difference between the net family properties of the spouses if equalizing would be unconscionable to one of them. How would the court go about making such a determination? They would need to look at the list of factors found under s. 5(6), and in this case, they would look more specifically at s.5(6)(e) which states that they would consider “the fact that the amount a spouse would otherwise receive is disproportionately large in relation to a period of cohabitation that is less than five (5) years.”

Since Kim’s and Kris’ marriage lasted only 72 days, it is possible to assume that if they were Ontario residents, DASH Boutique, Kim Kardashian’s luxurious home in Calabasas, CA, her designer bags, jewels and shoes, etc. could be shielded from equalization, much to the detriment of Kris Humphries who is unemployed and sidelined due to the long-lasting basketball strike going on right now in the NBA.

In his Complaint for Divorce, Tareq claimed adultery and abandonment as the grounds for divorce.  From paragraphs ten to sixteen of said Complaint for Divorce, Tareq states that Michaele’s paramour sent an e-mail to him containing obscene pictures of himself.  In addition, he states that Michaele continually exposed their friends and acquaintances to her adulterous relationship and flaunted it within the community, which caused him to suffer great harm, humiliation and embarrassment.  Lastly, Tareq claims that due to the abandonment of the marriage and the adultery by Michaele, he has suffered both emotional and physical harm.

In Ontario, in order to file for divorce, Tareq would look to the Divorce Act under s. 8 to determine when and whether a court would grant him a divorce.  Under said section the following is stipulated:

Divorce

8. (1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.

Breakdown of marriage

(2) Breakdown of a marriage is established only if

(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or

(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

(i) committed adultery, or

(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

Pursuant to this section of the Divorce Act, if Tareq was to bring an Application for divorce in Ontario, he would have to either wait until his one-year separation period elapsed or, in order to accelerate the granting of a divorce Order, he could make a claim for adultery or cruelty.

Case law stipulates that in order for a claim under s. 8(2)(b)(i) to be successful, Tareq would have to prove that he did not condone the adultery in any way.

However, could Tareq also bring a claim under s.8(2)(b)(ii) for cruelty?

Case law stipulates that the conduct required to establish cruelty must be of a grave and weighty nature and cannot be conduct that simply indicates incompatibility between spouses.  In addition, the effect of the conduct on the affected spouse is a relevant consideration.  Lastly, it must render the continued cohabitation of the spouses intolerable.

Does Tareq have a viable claim for cruelty?  Probably not.  Both cruelty and adultery present incredibly high thresholds for divorcing spouses to meet when attempting to evade the requisite one-year period of separation.  However, if they are successful, they can obtain an Order for divorce almost immediately.  The statements contained in the above mentioned paragraphs ten to sixteen of Tareq’s Complaint for Divorce are likely not enough to meet the high threshold for cruelty.   

Lawyers in Ontario hardly ever use cruelty or adultery as grounds for divorce because it is incredibly time consuming to prove.  As such, it is generally faster to just wait for the requisite one-year period.  Also, claiming cruelty or adultery usually leads to animosity between the parties, which is not helpful when trying to reach a quick resolution of all the issues in dispute.  It is usually better to focus on resolving the issues at hand than to focus on the adultery or poor conduct of the other party.

Complicating the matter are the allegations that Ms. Smith was gettin’ jiggy, so to speak, with her Hawthorne co-star (and the newly separated) Marc Anthony, who was the subject of our Celebrity Blog recently.  This might be some sort of lead-in to an elaborate celebrity wife swap show, but I don’t think almost-Scientologists would get involved in stuff like that.

Their situation, if embodied by a less-famous Canadian couple, would fuel debate about the time frame after which they could actually obtain a divorce.  The uncertainty would also impact the calculation of the equalization of net family property.

Section 8 of the Divorce Act reads as follows:

Divorce

8. (1) A court of competent jurisdiction may, on application by either or both spouses, grant a divorce to the spouse or spouses on the ground that there has been a breakdown of their marriage.

Breakdown of marriage

(2) Breakdown of a marriage is established only if

(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or

(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,

(i) committed adultery, or

(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

The adultery option is difficult to prove and therefore can be time consuming and expensive.  It is therefore rarely exercised.  The large majority of divorces in Canada are applied for on the grounds that the couple has been living separate and apart for at least one year.

If down the line one of the two Smiths decided they would like to get a divorce, the date on which the year-long clock that determines their eligibility for one starts running would likely be a matter of contention.  They have been seen arguing in public, Will has even been spotted fleeing the matrimonial home in a teary-eyed state.  But there are also examples to refute the notion the couple may be living separate and apart, such as their magical afternoon date in Malibu and the assertions marital harmony from Carlton Banks, I mean… oh who am I kidding, nobody identifies him by his real name.

Determining the date of separation is often a question of fact because it involves an analysis of a variety of factors.  One has to consider whether the spouses: are eating together; sleeping in the same room, or in the same bed; run errands together; go to social functions together; and on and on and on.  We seem to be in the initial stages of a potential scandal, but if the time comes for Will and Jada (and the nameless, hypothetical Canadians I have been using to mirror them) to “lawyer-up,” they need to be prepared to assess the aforementioned elements of their relationship and come to terms on a mutually agreeable date of separation.

However, before he jumps into marriage, there are certain things that Lance Bass should consider. Since his days as a teen heartthrob, when he was one of five members of the worldwide sensation known as N’SYNC, Lance has managed to earn a pretty penny and consequently, he should ensure that his hard work and efforts are protected if he ever decides to obtain a divorce.

In Ontario, domestic contracts (included therein is “marriage contract”) are regulated by the Family Law Act. Section 52 deals specifically with marriage contracts and outlines what sorts of provisions would or would not be enforceable. More specifically, section 52 states:

52. (1) Two persons who are married to each other or intend to marry may enter into an agreement in which they agree on their respective rights and obligations under the marriage or on separation, on the annulment or dissolution of the marriage or on death, including,
(a) ownership in or division of property;
(b) support obligations;
(c) the right to direct the education and moral training of their children, but not the right to custody of or access to their children; and
(d) any other matter in the settlement of their affairs.

Rights re matrimonial home excepted
(2) A provision in a marriage contract purporting to limit a spouse’s rights under Part II (Matrimonial Home) is unenforceable.

In addition, section 55(1) of the Family Law Act stipulates that in order for a domestic contract to be valid and binding it must satisfy the following three requirements:

1. it must be made in writing;
2. it must be signed by the parties; and
3. witnessed.

Therefore, a validly executed marriage contract could protect Lance Bass in the following ways (but not limited to the following):

• it could protect his ownership and interest in any property he may own. Meaning that he could exclude it from a Net Family Property calculation so that the value of same would not have to be shared with his spouse, unless the property in question was a matrimonial home;
• it could limit or waive his obligations to support his spouse;
• it could limit his obligations to support any children of the marriage or attach conditions to same; and
• it could determine from the outset the custodial arrangements with regards to any children of the marriage.

In conclusion, Lance has a lot to think about before deciding to get hitched!

In order to be granted a divorce the Divorce Act requires there be a breakdown of the marriage; demonstrated by one of three things:

Breakdown of marriage
(2) Breakdown of a marriage is established only if
(a) the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding; or
(b) the spouse against whom the divorce proceeding is brought has, since celebration of the marriage,
(i) committed adultery, or
(ii) treated the other spouse with physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses.

Claiming physical or mental cruelty for the reason for the breakdown of the marriage has several consequences. First unlike the most common ground for divorce, having lived separate and apart for one year, a divorce due to cruelty is granted immediately. There is no need to wait one year. Secondly, cruelty is not just something the court will grant automatically. The person claiming it must prove to the court that there was mental or physical cruelty and it was so bad that it made living with the spouse intolerable. This is not something the court takes lightly.

We wish Ice and Laura all the best in this difficult time and hope this can serve as a lesson to others as well. Even if you’re married to Vanilla; marriage can still be a Rocky Road.

If the couple lived in Ontario, this would be done using a separation agreement. A separation agreement allows a couple to settle their issues in a contract, section 54 of the Family Law Act states the things couple can contract to:

54. Two persons who cohabited and are living separate and apart may enter into an agreement in which they agree on their respective rights and obligations, including,
(a) ownership in or division of property;
(b) support obligations;
(c) the right to direct the education and moral training of their children;
(d) the right to custody of and access to their children; and
(e) any other matter in the settlement of their affairs.

Individuals might draft a separation agreement through negotiations, mediation, arbitration or the collaborative family law process. Fighting family law issues in court is an expensive and very long process. Much of the family law system in Ontario is in fact designed to encourage settlement between the parties. Every couple must attend a case conference before a trial or motion in which a judge will canvas the issues and give them information on ways to settle their issues, and there are cost penalties to litigants who ignore reasonable offers to settle and subsequently fail in litigation. Using a separation agreement is usually in the best interest of both parties. Many of those who become embroiled in litigation often wish they could go back in time and avoid the whole mess through a settlement.