Clients often contact our office inquiring whether we can assist with their divorce. In these cases, one of the first questions I always ask is how long they have been separated for. If they tell me they’ve only been separated for a few months I inform them that they can’t get divorced unless one of the following things occurs:
The Divorce Act (“DA”) requires that there be a “breakdown of the marriage” under s. 8(2).
This means that:
- You live separate and apart for one year;
- The other spouse has committed adultery; or
- One spouse has treated the other with physical or mental cruelty.
If you meet one of the criteria above then you can get a divorce. If you are separated, you can start an application for divorce at any time, but the court will not grant you the divorce until you have been separated for one full year. The DA even has a section on how to determine that period of separation under s. 8(3) The basic requirements are that the spouses have an intention to separate and that they do not try to reconcile their relationship for more than 90 days.
Keep in mind that divorce only applies to married spouses; if you are common law then you only need to be separated in order to effectively terminate the relationship. See our previous blog post covering the difference between common law and married spouses.
Even if you start the divorce application, the divorce does not actually take effect until 31 days after a Judge provides a judgment granting the Divorce (see s. 12(1) of the DA). Furthermore, s. 11(1)(b) of the DA states that a divorce will not be granted until the court is satisfied that reasonable arrangements have been made to support the children of the marriage.
A divorce or annulment is the only way to end a marriage.
You won’t NEED any formal documentation to show that you are separated, however it is HIGHLY recommended that you get a separation agreement drafted to protect your interests. http://www.rabideaulaw.ca/separation-agreements-an-overview/
Adultery and Abuse
The “separated for a year” rule does not apply if there is a breakdown of the marriage resulting from adultery or abuse. If a person is relying on adultery or abuse as a reason for the breakdown of marriage, s. 11(1) of the DA makes it clear that there can be no collusion, condonation, or connivance on the part of the spouse bringing the application.
This means that the spouse bringing the application for divorce cannot accept the behaviour or conspire to orchestrate the adultery or abuse. Also, the spouse committing the adultery cannot use it as a reason for the breakdown of the marriage. However, the court will grant the divorce if it is their opinion that the public interest would be better served by granting the divorce.
The DA also provides a definition for collusion. Here, collusion means an action taken directly or indirectly by a spouse applying for divorce to subvert the administration of justice. This includes an agreement or conspiracy to fabricate, or suppress evidence to deceive the court (see s. 11(4) of the DA).
The Separation – Living Separate and Apart
In order to be separated, courts need to see that you are living “separate and apart”.
But what does this mean exactly?
There are a few factors that courts will consider regarding whether or not two persons are actually separated. Simply saying you’re separated may not be enough.
Factors courts will consider to determine if you are separated include the following (see paragraphs 37-47 of T.R. v A. K, 2015 ONSC 6272)
- Is there a physical separation, (Note that this doesn’t have to mean spouses live in separate houses)
- An intent of ending the marriage/relationship
- Absence of sexual relations
- Level of communication between the spouses
- Are there joint social activities
- Meal patterns
- What chores are being performed between them
- How do others view their relationship
Keep in mind that this is not an exhaustive list as courts can consider other factors. Also, you don’t need to meet all of these factors in order to be considered separated. What needs to occur is that courts see a physical separation and that you both are seeking to pull out of the marriage (or common law relationship). What is important is the INTENTION to separate.
Does the date of separation matter?
The actual separation date or valuation date as defined in s. 4(1) of the Family Law Act is an essential part of the separation process. The valuation date is the date from which all values related to property and support are calculated from. As an example, a valuation date in the winter versus one in the spring or summer could affect the value of the matrimonial home and how much is to be distributed between the parties. This is why it is crucial to seek out a family lawyer to advise you of your rights and responsibilities to ensure that you and your family are properly protected.
Keep an eye out for future blog posts discussing issues related to property.