Original Publish Date: June 26, 2019
Revised: September 21st, 2022
When marriages break down, it’s essential to have a clear understanding of the next steps.
The only legal reason you need to be granted a divorce is that your marriage hasn’t worked.
Getting an annulment is another possible solution, but an annulment is only applicable in certain situations.
Read on to find out more about the difference between a divorce and an annulment and which one is more applicable to your situation.
You and your spouse need to be separated for one year
If you want to end your marriage legally, you must have lived separate and apart from your spouse for at least 12 months. In most cases, you can begin the steps to divorce before the 12 months, however, the divorce cannot be completed until one year has passed.
During the 12 months, you must live apart from your spouse with the intention of ending your marriage.
The law accepts that there has been a breakdown of your marriage if you can prove that you and your spouse have lived separate and apart for at least 12 months.
The court may deem you to be living separate and apart while continuing to live in the same residence, although it depends on your individual circumstances. This is the most common ground for divorce as it requires less evidence and is less likely to be contested.
Special circumstances
If there’s another reason for the breakdown of the marriage, for example, adultery, emotional or physical violence, and cruelty, the court may grant divorce earlier than 12 months.
The biggest things you will need to show is that living together is not safe and provide additional proo as to why you feel this way so the court has evidence.
In cases of adultery, the other party to the affair needs to be served and given an opportunity to defend his/her honour in court.
This process requires additional steps and generally a lawyer’s help.
Annulment vs Divorce in Ontario: Can I get an annulment?
It is important to understand that in Canada there is a very large distinction between a divorce and an annulment. The most important thing to know is either one does not depend on how long you have been married.
Annulments in Ontario are governed by the Annulment of Marriages Act (or the AMA).
An annulment can only occur if a party is able to demonstrate that either a marriage lacks formal or essential validity. While divorce law falls under federal law, the formal validity of marriage falls under provincial jurisdiction.
The most common reason for an annulment is there would have to be defect in following the provincial rules for the formality of a ceremony.
How do I apply for a divorce?
Once you have either lived apart from your spouse or worked through your particular circumstances, you must:
- Fill out a divorce application
- Submit the application through a courthouse in Ontario
- Pay the court fees
- Follow any court rulings or procedures
Typically this is a 3-4 month process.
When to get professional advice
Before starting divorce proceedings, it’s recommended that you seek professional legal advice from a divorce lawyer.
A lawyer can walk you through how the law applies to your individual circumstances and help protect your rights.
In a lot of cases, there are other claims that need to be made in addition to the divorce itself. We therefore strongly recommend that you consult with a lawyer prior to filing in court.
Contact us to schedule your free consultation.
This blog is made available by the law firm publisher, Epstein & Associates, for educational purposes. It provides general information and a general understanding of the law but does not provide specific legal advice. Any specific questions about your legal concerns please contact us now and speak to an expert today.