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Understanding Automatic Divorce in Canada: What Happens After a Long Separation?

Going through a divorce can be a complicated and emotionally challenging process, especially for those who have been separated for a long time. The idea of an automatic divorce after a long separation in Canada is often misunderstood. In this article, we will clarify the facts about divorce after a long separation, discuss your options and provide the next steps. If you are considering taking the next step in your separation, this guide will provide you with the necessary information to make the right decisions with the help of a lawyer. Remember, Epstein & Associates is here to offer further support and clarification with a free consultation.

The Myth of Automatic Divorce After Long Separation in Canada

It is not uncommon for us to have long-separated spouses looking for an automatic divorce. The myth is founded in some truth: living separate and apart for at least one year can be a condition for divorce in Canada; however, there is no scenario where you can achieve an automatic divorce after a long separation in Canada. The idea that a marriage can dissolve on its own over time without any legal intervention is a myth. In reality, ending a marriage legally in Canada requires an application to (family) court, even after a long separation.

Legal Requirements for Divorce In Canada

Under the federal Divorce Act, at least one spouse must have lived in a Canadian province or territory for a minimum of one year before applying for a divorce. The grounds for divorce include:

  1. Living separate and apart for at least one year
  2. Physical or mental cruelty
  3. Adultery

It’s worth noting that while the separation period is a commonly cited ground for divorce, the separation itself does not automatically dissolve the marriage. Legal action must be initiated by one or both parties.

Next Steps: Navigating Separation and Divorce

If you and your spouse have been living apart for some time, you might wonder what your next steps should be. Each divorce requires us to negotiate between spouses to determine a fair outcome, which is one of the reasons that automatic divorce is not possible in Canada. Here are some of the things you may need to consider in your divorce, even if you have been separated for a long time.

Legal Separation

In Canada, it is not a legal requirement to have a separation agreement with your divorce; however, establishing a separation agreement will make the entire divorce process easier. Within your separation agreement, you can include matters such as assets, debt and property division. Drafting this agreement can clarify the responsibilities of each party during the separation period, making the entire process more agreeable for all parties involved. Keep in mind, though, that there are time limitation periods that apply to separations, such as a claim to property expires six years from the date of separation or two years from the date of divorce (whichever is sooner).

Related article:
Preparing a Separation Agreement in Ontario – Epstein & Associates

Filing for Divorce

One of the three grounds for divorce in Canada is living separate and apart for at least one year. Within Ontario, this is the most common reason for divorce, and it does not require you to prove your spouse is responsible for the marriage breakdown. The next steps include speaking with a divorce lawyer, gathering the necessary documents and completing your divorce application. Once you have contacted a divorce lawyer, they will help you through the divorce process.

Related Articles:
How to start divorce proceedings in Ontario – Epstein & Associates
Why Do You Need A Divorce Lawyer? – Epstein & Associates

Child and Spousal Support

When children are involved in divorce, their well-being is a paramount concern within the divorce proceedings. A court will only grant a divorce if they are satisfied that adequate child support arrangements have been made. This includes child support payments and decision-making responsibility (formerly custody).

Similarly, spousal support is a critical consideration, especially if there’s a significant discrepancy in income, or financial stability between the spouses.

Related Articles:
Your Complete Guide to Child Support Laws In Ontario
Spousal Support: What is it and do I Qualify? – Epstein & Associates

When To Contact A Lawyer

Most individuals attempting to achieve an automatic divorce after a long separation in Canada want to get divorced as quickly and efficiently as possible. Whatever your reasons for divorce, you have already been through a prolonged separation period and you want to be finished with the entire process. However, when it comes to a divorce, consulting a lawyer as early as possible will help you get to your desired outcome as quickly as possible. The Courts take time to process divorce applications and there is little that can be done, once filed, to speed up this process.

Whether your divorce involves the division of property, decision-making responsibility (formerly custody) for children, financial support or other common negotiations, an experienced family lawyer will provide clarity and ensure your rights and interests are protected.

Contact Epstein and Associates for a free consultation with one of our experienced divorce lawyers.

Frequently Asked Questions

1. Can I automatically get a divorce in Canada after being separated for a long time?

No, there is no such thing as an “automatic divorce” in Canada. Even after a long period of separation, you must apply for a divorce through the court system to legally end your marriage.

2. How long do we need to be separated before I can apply for a divorce?

Under the Divorce Act in Canada, you must be separated for at least one year before you can apply for a divorce on the grounds of separation. This period is meant to be a time for reflection and possibly reconciliation. If you have been separated longer than one year, you can apply for divorce with the help of a divorce lawyer.

3. Does my spouse need to agree to a divorce after a long separation?

While mutual consent can make the divorce process smoother, only one party needs to file for divorce. However, the other spouse must be notified and given the opportunity to contest the divorce terms. If you are unable to contact your spouse, or if they refuse to participate, you may still be able to apply for divorce. With the help of a lawyer, you will need to provide evidence to the court that you have made reasonable efforts to notify your spouse of the divorce application.

4. What happens to our children and property if we get a divorce after a long separation?

It is a common misconception that divorce automatically solves issues regarding decision-making responsibility, support and the division of property. However, through the divorce process, these matters are settled through methods such as a separation agreement, mediation or court orders if you and your spouse cannot reach an agreement. If you have been in agreement throughout your separation, there is no reason to fear that the divorce process will derail things between you and your ex. Remember, you hold the reigns in instructing your lawyer and should always be a part of the communication.

5. Do I need a lawyer to file for a divorce after being separated for a long time?

While it’s not a legal requirement to have a lawyer for a divorce in Ontario, navigating the divorce process and understanding your rights and obligations can be complex. Consulting with an experienced divorce lawyer is advisable, especially to deal with financial matters, property division, and decision-making responsibility (formerly custody) issues. Make sure that your rights are protected and that you aren’t jeopardizing your position in the future.