If I Have Been Separated for a Long Time, Am I Automatically Divorced?
Some spouses are confused about the difference between separation and divorce, believing one to be similar to the other, and that they’ll simply be automatically divorced after a long separation. This incorrect assumption can lead to serious complications, especially for those who wish to get on with their lives.
If you believe that you’ve automatically become divorced because of a long-term separation, then you should learn more about the differences between divorce and separation, and understand the concept of automatic divorce after a long separation in Canada.
What Does Everyday Life Look Like During Marital Separation?
An unmarried or married couple is deemed to have separated, once at least one of the couple decides that the relationship is untenable, and informs their partner about their feelings. The couple does not have to be in agreement over the separation; just one partner can choose to end the relationship and the separation will come into effect. Typically, spouses will stop living as a couple after they separate. The majority of people stop sleeping together, stop running errands for one another, stop dining together and stop socializing together.
Spouses do not have to live in different houses to be classed as separated. Occasionally, separated couples opt to remain at their current address (usually in different bedrooms), due to financial considerations. For most people, it is more affordable to live under one roof and share the household bills, rather than live separately.
Not all separated spouses stay apart forever. Some of them attend therapy sessions, in the expectation that they will ultimately get back together. Notwithstanding, for other couples, there is no prospect of reuniting and the separation signifies the end of their relationship.
Marriage Separation and the Law
Separation Requirements in Canada
Put simply, separation in marriage involves one spouse not living with the other. In some cases, both of you may live in the same residence, but have decided to stop living together as a married couple. There are no specific legal requirements to be separated from your spouse. There is also no specific requirement under the law for a couple to declare themselves as separated if they’re no longer acting as a married couple. Due to the lack of specific separation requirements, neither you nor your spouse have to do anything to be separated or exist as a separated married couple.
When Do You Need a Legal Separation Agreement?
Some couples believe that they have to file a separation agreement when they stop living together or interacting with one another. The only time a legal separation agreement is filed is when one spouse feels the need to outline a specific arrangement that ensures the other spouse deals with the financial and parenting responsibilities.
These types of separation agreements are completely optional, requiring one of the spouses to apply through the courts to work out important issues that need to be taken care of, especially if one-half of the marriage doesn’t want to separate and refuses to participate in child support. In these cases, you’ll need a family lawyer to arrange a separation agreement document that meets legal requirements.
Furthermore, when you take a legal separation agreement to court and have the document officially recognized, this allows for enforcement of the separation terms. Once registered with the government, the separation agreement becomes an enforceable court order that results in consequences if the terms aren’t fulfilled. Court orders need to be signed by a judge before they become enforceable.
Useful resources from the official website of the Government of Canada:
Other Useful Resources
- Legal Separation & Divorce Preparation Checklist
- Separation Agreement Checklist
- Ontario Child Support Calculator
Separation Vs. Divorce
The most significant difference between divorce and separation is the fact that separation may take place without the law becoming involved, while divorce only occurs when it’s sanctioned by the legal system. To be officially divorced, you require a divorce certificate from a government body. Separation officially takes place the moment that the two of you no longer act as a married couple. Only a legal separation requires an official document from the court system.
Another significant detail when comparing separation and divorce is that for a divorce to take place, the Canadian government requires that spouses are considered separated for at least a year beforehand.
In fact, a spouse may opt to obtain legal separation simply to have proof that a year of separation has passed before the divorce case started.
Separation is never considered to be divorce, even if a couple has been separated for a very long time. The only way divorce takes place is specifically through the courts, which have the ability to nullify the marriage contract and issue a divorce certificate. Once the divorce certificate is obtained, both spouses will be free to remarry. While separated, spouses are still considered married, which prevents you from obtaining a new, legal marriage contract.
Related: How Long Does Divorce Take in Canada?
How Long Does a Marital Separation Last?
There are no time restrictions for marital separation. Divorces will never be granted due to a separation, or immediately after one. Actually, a spouse can stay separated from their partner on an ongoing basis, without getting divorced. A divorce only becomes legally necessary if one partner wants to remarry. This rule is only overridden if a spouse files for divorce on the basis of cruelty or adultery.
The Twelve Month Period of Separation
A spouse who files for divorce on the grounds of separation, has to have been separated from their partner for at least twelve months. You can start filing for a divorce immediately after you separate, however you will not be granted a divorce by the courts until the twelve months have passed. Sometimes, couples reunite during their twelve month separation period. However, this does not count as the end of their separation period, until they have been reunited for at least three months.
This rule is designed to give couples some breathing space, to repair their relationship and rekindle their love, without holding up a divorce should their efforts be unsuccessful. If a couple gets back together for at least three months, but then separates again, they will have to start a new twelve month period of separation, prior to obtaining a divorce. Before they sign a separation agreement, both spouses should educate themselves about their legal rights.
Understanding the Concept of Automatic Divorce After Long Separation in Canada
Automatic divorce after a long separation in Canada offers a streamlined path for couples who have experienced irreconcilable differences and have lived apart for at least one year. Under this framework, the legal termination of a marriage is simplified, removing the need to prove fault-based grounds such as cruelty or adultery. A spouse who files for divorce on the grounds of separation must demonstrate that they have been separated from their partner for a minimum of twelve months. While it’s possible to begin the divorce filing process immediately after separating, a divorce will not be granted by the courts until the twelve-month period has passed.
During this separation period, couples may sometimes reunite, but this does not automatically end the separation unless they have been together for at least three months. This rule is designed to give couples the opportunity to repair their relationship and rekindle their love without delaying a potential divorce if their efforts are unsuccessful.
However, if a couple stays together for at least three months and then separates again, they will need to start a new twelve-month separation period before they can file for divorce. It is critical for couples to educate themselves about their legal rights and navigate the legal system by filing the necessary documents in family court after fulfilling the one-year separation requirement.
This approach offers a straightforward and less contentious alternative to ending a marriage while ensuring all legal criteria are met.
Legal Steps to Achieve Automatic Divorce After Long Separation
While a year-long separation can lead to an automatic divorce in Canada, the process involves several legal steps that must be carefully followed.
First, one spouse must file a Petition for Divorce citing the separation period as grounds. Both parties must complete and sign detailed application forms, addressing any issues related to children or shared assets.
Once these forms are submitted to the relevant family court, there may be a waiting period during which the application is reviewed and any objections can be raised.
The court eventually issues a Divorce Certificate if all criteria are met, formally ending the marriage. Understanding these legal steps and ensuring all conditions are fulfilled can make the path to divorce smoother.
Always Obtain Legal Help
The end of a marriage is always a difficult time for everyone involved. Dealing with the legal system when separating or divorcing your spouse can lead to long-term problems for you and your family.
Fine & Associates Professional Corporation is a well-respected Family Law Firm in Toronto that prides itself on providing quality personal service and favourable outcomes in Family Law matters and Divorce Law cases.
Schedule a free consultation about your separation or divorce matter.