When a marriage is failing, most couples know that the end is near and that divorce is an inevitable eventuality. There are cases, however, when an escalated disagreement or extended argument may signal a false alarm and a cooling off period can rekindle matrimonial love.
The law requires a form of waiting period for a divorce. The same way that marriage may be a life-changing decision, its final dissolution carries with it a string of irreversible legal implications and thus, an extended period of separation may confirm the impossibility of any reconciliation.
When a couple splits and decides to live “separate and apart,” the clock begins ticking on the countdown to divorce. Most do not expect that the clock can be easily reset, causing some inconvenient complications on the way to a final divorce decree.
Legal Requirements for a Divorce
In Canada, one catchall category serves as the legal basis for a divorce. Typically, courts and lawyers will refer to the “breakdown of the marriage” as the only cognizable reason to apply for and be granted a divorce.
Since Canada is a no-fault divorce jurisdiction, the breakdown of the marriage standard means that either party can apply for a divorce based if they meet any one of the following criteria:
• the couple has been living separate and apart for at least a year
• one spouse has been abusive —physically or mentally cruel — to the other
• spouse has committed an act of adultery
The Divorce Act, R.S.C. 1985 c. 3, is the federal law that governs divorce proceedings across Canada and stipulates the no-fault divorce provisions. Applying for a divorce in the various provinces and territories may, however, is regulated by other local rules of court and procedure.
Applying for a Divorce
When a couple or individual spouse determines that the marriage has broken down, they may apply to a provincial or territorial court for a legal divorce. When submitting the application, the moving party will have to meet all of the legal requirements for a divorce.
Pursuant to the Divorce Act, there are three necessary provisions to apply for a divorce:
• a legal marriage exists under the laws of Canada or another jurisdiction
• the marriage has broken down
• the parties have been living in the province or territory for at least a year prior to the making the divorce application
The application for divorce must be submitted to the provincial or territorial court accompanied by all necessary forms, applications, information, fees, and other procedurally required documentation.
Living Separate and Apart
Unless there has been an act of adultery or physical or mental abuse, most couples rely on the living separate and apart clause to prove a breakdown of the marriage. The law allows for a reconciliation period not to exceed 90 cumulative days during the year of separation and keeping track of that time is important since exceeding it can nullify a divorce application.
Consider a couple that separates on 1 January and remains apart for 30 days, but then enters into a reconciliatory period from 1 February until 15 April. They live apart again following the 75 days that accrued towards their 90-day reconciliation period. Late in the year — around the holidays — they spend the entire month of December together.
If the same couple attempted to divorce in January subsequent to the initial separation, they could be denied a divorce for not having lived separate and apart for a year. The 105 days spent together would nullify the year required by law to prove the breakdown of the marriage.
Defining Separate and Apart
Consulting a lawyer about the specifics of living and separate is the best way for couples to understand the Divorce Law and its itinerant requirements. There are instances where a couple may live separate and apart under the same roof and thus it is not always easy to determine when to begin counting time towards the year requirement.
Courts rely on maintaining individual domiciles as the easiest and most reliable measure of living separate and apart. The underlying concern of the courts, however, is that the couple is living independently of one another, and for legal purposes, that can be achieved from under the same roof.
Conversely, a couple who lives at separate addresses may complicate a divorce by carrying on a relationship — socially, romantically, or otherwise — that negates the concept of separate and apart. Because of the complexity of the legal considerations, consulting a lawyer is the only way to be sure that the requirements for divorce are fulfilled to prevent any unexpected delays or