Generally, divorce laws in Canada are designed to help individuals legally dissolve their marriages when the relationship has irretrievably broken down. By and large, one of the most common reasons for divorce in the country is separation for an extended period of time.
Today we will go through the concept of automatic divorce after long separation in Canada, the legal framework, process and considerations involved.
First you need to understand divorce in Canada
The Divorce Act of Canada governs the rules and procedures for divorce in the country. Unlike many other countries, Canada operates under a no-fault divorce system, which means that neither spouse has to prove wrongdoing (such as adultery or cruelty) in order to get a divorce. Instead, the most common reason for divorce is “marriage breakdown,” which can appear in one of three ways, viz.
- Separation for at least one year.
- Adultery.
- Cruelty
Of these three, separation for at least one year is by far the most cited ground for divorce in Canada. This approach reflects the country’s commitment to allowing individuals to end marriages without the need for lengthy or contentious legal processes that no longer work.
What is automatic divorce after long separation?
In Canada, the term “automatic divorce” is somewhat confusing. There is no true “automatic” divorce in the sense that the marriage dissolves automatically without any action on the part of either spouse.
However, after a one-year separation period, couples can apply for a divorce, and it becomes relatively easy to obtain as long as certain criteria are met.
When the spouses have been separated for at least one year, this period serves as sufficient proof of the dissolution of the marriage. In such cases, courts usually grant divorce without requiring the spouse to prove any fault or wrongdoing.
The process is streamlined, and if both parties agree on important issues such as child custody, spousal support, and property division, the divorce can be finalized relatively quickly.
One year separation rule in Canada
To meet the separation ground for divorce in Canada, the couple must have lived apart for at least one year before filing for divorce. This period of separation is very important because it signals to the court that the marriage has irretrievably broken down and there is no chance of reconciliation.
You have to remember these things about one year separation
Living Separately: Spouses must live separate and apart for one year. This usually means they do not live in the same residence, but there are exceptions.
Efforts at Reunification: A short period of reunification (up to 90 days) is allowed during the year of separation. If the couple tries to reconcile but then separates again, the separation period is considered continuous and the 90-day reconciliation attempt does not reset the separation clock.
No requirement for mutual consent: Unlike some jurisdictions where both spouses must consent to the divorce, in Canada, only one spouse needs to file for divorce after one year of separation. The consent of the other spouse is not required for the divorce to proceed.
Divorce proceedings after long separation
Although Canadian law does not provide for an “automatic” divorce after a long separation, the process becomes easier after the one-year separation period.
This is how the divorce process usually works when separation is used as a ground
Filing for Divorce
Once the separation period of one year has passed, either spouse can file for divorce in court. In the petition, the spouse must state that the reason for the divorce is one year of separation. The application can be joint (filed by both spouses) or sole (filed by only one spouse).
Proof of separation
A spouse filing for divorce must show that they have been separated from their partner for at least one year. This proof can be as simple as confirming that the couple was living separately at the time. Courts generally accept a sworn statement from one of the spouses as sufficient evidence of divorce.
Solving other problems
Even in the case of a divorce based on long separation, the couple still needs to address issues related to:
Child Custody and Parental Arrangements
Child support
Spousal support
Division of Property and Debt
If the couple has already reached an agreement on this, the divorce process can proceed smoothly. If there are disputes, the court may intervene to settle these issues before granting a final divorce.
Uncontested vs Contested Divorce
Uncontested Divorce: If both spouses agree to all the terms of the divorce (including custody, support and property division), the process is usually quick and straightforward. Courts can grant divorce without requiring the couple to appear in court.
Contested Divorce: If the spouses cannot agree on key issues, the divorce becomes contested and a court hearing may be required to resolve the disputes. This can make the divorce process longer and more complicated, even after a long separation.
Final Divorce Decree
Once the court is satisfied that one year of separation has been met and all other issues (such as child support and property division) have been resolved, the judge will issue a divorce decree. This order legally dissolves the marriage. A divorce becomes final 31 days after the decree is granted, at which point both spouses are considered legally divorced.
Divorce after a long separation has several benefits
No need to prove fault: In long separations, the court does not require either spouse to prove fault, making the process less contentious and emotionally draining.
Simplified Process: After a year of separation, the process of filing for divorce is straightforward, especially if both spouses agree on everything. This can reduce the time, cost and stress associated with the divorce process.
Opportunity for reflection: A one-year separation period gives both spouses a chance to reflect on their marriage and decide if divorce is the right choice. For some, this period leads to reconciliation, for others, it solidifies the decision to divorce.
Despite the benefits, there are some potential challenges you have to face
Although the divorce process after a long separation is relatively simple, there can still be challenges, especially in resolving financial and custody issues.
Disputes over property or support: Even after a long separation, disputes over property division, spousal support or child custody may arise. These disputes can delay the divorce process and may require mediation or court intervention to resolve.
Financial Considerations: A long separation can complicate financial matters, especially if one spouse is supporting the other during the separation period. Courts may consider financial contributions made during separation when determining spousal support or property division.
Child Custody and Parenting Time: For couples with children, child custody and parenting arrangements must be addressed, regardless of how long the separation has been. Courts will prioritize the best interests of the children and this can sometimes lead to disagreements between parents.
Frequently Asked Questions
Can we still live together and be considered separate?
Yes, in some cases, spouses can be considered “separated” even if they live in the same home. The key factor is whether they live separate lives, meaning they don’t share beds, meals or household responsibilities. However, this situation can complicate proof of separation in court.
Do both spouses need to agree to divorce?
No, in Canada, only one spouse must file for divorce after one year of separation. Consent or consent of the other spouse is not required.
What if a spouse refuses to participate in the divorce proceedings?
If one spouse refuses to participate in the divorce proceedings, the other spouse can still proceed with a sole divorce petition. The court may grant the divorce even if the other spouse does not respond, provided that the required separation period has been met.