Is there automatic divorce after long separation in Canada? Or can I appeal for a divorce after taking a long break from my spouse?
Well, you can definitely appeal for automatic divorce after long separation. But, according to Canadian divorce laws, a long separation doesn’t result in automatic divorce in Canada. However, there are some exceptions where a long break can be the ultimate reason for automatic divorce.
Seems confusing? Let’s break down the entire concept of the long separation divorce to clarify all your doubts:
What’s Considered Long Separation in Automatic Divorce Cases?
According to Canadian Law, separation is a legal term that involves the breakdown of a marital relationship. Now, what is considered a long separation in automatic divorce? In general, a one-year separation is considered sufficient ground for automatic divorce. This period will allow the couple to take their decisions carefully and explore the possibility of reconciliation before finalizing the divorce.
The key ingredient of an automatic divorce can be defined as living separately for a long with no intention of resuming cohabitation. The accepted benchmark for an automatic divorce in Canada is one year. The factors of automatic divorce can be physical separation, emotional separation, or financial separation.
Are Separation and Divorce the Same Thing in Canada?
Separation and divorce are two different things according to Canadian law. A separation is when two people who live together as a married or common-law partner make the decision to live apart. If the couple is legally married, then the decision to live separately doesn’t end the marriage.
On the other hand, divorce is the formal method of terminating a marriage. For divorce, the couple has to go to court and follow all the legal works and formalities to break their marriage.
With separation, the marital status will remain the same for the couples. With divorce, the marital status will be completely changed and both parties will have no right to interfere in the other person’s life anymore.
Unlike separation, divorce comes with a lot of complexities and legal work. And unless the courts grant the divorce, you will still be connected with your partner.
Plus, the question of divorce mainly comes when you are legally married and want an official annulment of the relationship. Therefore, the concept of separation and divorce are totally different and refers to two different scenarios as per the Canadian legal rules and regulations.
Automatic Divorce vs. Rightful Divorce
There are some differences between the automatic divorce and the rightful divorce. Here are those:
| Criteria | Automatic Divorce | Rightful Divorce |
| Definition | Automatic divorce is a legal mechanism that allows couples to end their marriage without the need for a prolonged court battle or extensive legal procedures. | Rightful divorce is a traditional legal process of formally ending a marriage through the court system. |
| Grounds for Divorce | Automatic divorce requires no specific ground and is done without any fault assigned. | This must require specific grounds, including cruelty, adultery, desertion, or irreconcilable differences. |
| Legal Process | A quick and straightforward process that relies on a unilateral decision by one party or a pre-agreed-upon contract. | A more complicated process involving settlements, negotiations, or court proceedings. |
| Division of Assets | The default system or a prenuptial agreement determines the division of assets. | Each party’s income, contribution, or financial needs help negotiate the asset division. |
| Satisfaction | There may not be equal satisfaction. One party may feel the treatment was unfair and could not express their feelings. | Both parties will feel heard and respected. This feeling will lead them toward greater satisfaction and outcomes. |
| Relationship Outcome | There will be damaged relationships between the parties that may lead to more difficulties and conflicts. | There can be a better chance of maintaining a relationship that can help in future interactions. |
Timelines for Divorce Proceedings in Canada
The divorce procedure in Canada involves a series of legal steps and requirements. These are designed to ensure a comprehensive and fair resolution. Depending on the territory or the province, the process may vary.
The divorce procedure may initiate with the separation period. One year of separation between two parties can be the starting point for an automatic divorce in Canada. In general, the couple lives apart during this time. When the separator persists for more than one year, the couple can initiate the divorce process. This separation is considered a prerequisite to proceed with the legal process.
If you are living separated for one year, you or your spouse can apply for divorce. This application is the starting of the divorce proceedings. After you have applied for the divorce, there is a waiting period before the finalization of the process. This period allows both parties to address issues like division of assets, spousal support, and child custody. When all the documents are submitted, the court will review the case and finalize the divorce.
Marriage Separation Law in Canada
Separation is a complicated process that involves some legal procedures. In Canada, the marriage separation requires some legal procedures. The separation law in Canada includes a separation agreement that outlines the terms and conditions of the separation. It includes how the property will be divided, the terms of the separation, the custody, access arrangements for any children, and the support payments.
The interesting thing is that you and your spouse can prepare the agreements without the need for a lawyer. However, it is always recommended to seek legal advice to ensure a fair and legally binding agreement. Regarding child support and custody, you must make proper arrangements for your child as part of the separation agreement. The court will decide the child’s custody based on their interest and relationship with each parent.
When it is about spousal support, if one depends on the other, they will get it as part of their agreement. In this case, the court will consider the factors like each spouse’s financial condition, length of the marriage, ability to become self-sufficient, etc.
Does Long Separation Result in Automatic Divorce in Canada?
Long separation or short separation–whatever terms you use, it will never account for an automatic divorce in Canada. Meaning, that as long as you are not appealing to get a divorce in Canada, you will still be linked with each other and considered lawful spouses.
Only an official divorce is legal and effective as per Canadian laws. However, there is always an exception to some cases where a separation can ultimately result in automatic divorce.
Let’s know about those grounds for automatic divorce that can happen if you take a long break from each other:
One-Year-Long Separation
Though there are no exact time limits of separation which can cause automatic divorce, you can definitely use the ground of absence or staying away from each other for a long period of 1 year. This is a valid point that you can use to appeal and get a divorce from your partner.
However, staying away from each other means you cannot have any physical or emotional intimacy with your other partner. Failure to maintain the basic rules will result in the decline of the ground. Therefore, you have to prove to the court that you were separated for at least 1 year from your partner.
More info, What Is The Divorce Rate In Canada?
Death of the Married Partner
Any sudden death of the married partner automatically results in the divorce. This type of separation falls under the category of automatic divorce. After all, if the person is no longer in the world, who will s/he be married to?
Similarly, if the other partner has gone missing or was hospitalized due to suffering from a serious mental disorder or wound, one can claim a rightful divorce. Even though there remains a chance that s/he will get back to their normal life, it doesn’t mean you will have to wait for the rest of their lives. It’s your choice whether you want to move on in life or not.
Therefore, if a legally married person goes missing for at least 7 years and remains totally out of contact, they will be considered permanently absent or deceased. In this kind of scenario, couples will get automatically divorced.
Domestic Violence and Long Separation
Domestic abuse is the beginning of all kinds of marital issues. If such abuse occurs, then the wife and husband can live separately from each other. This long separation can be actively used as a legal ground for divorce later on and can also help in getting your rightful compensation.
However, consult with an experienced lawyer, as domestic violence cases are quite sensitive and come with several complications.
When Can the Judge Refuse a Divorce?
While you are looking for a divorce and applied for it, the judge may refuse the divorce. Here are the circumstances in which the judge can refuse the divorce:
- A judge can refuse a divorce if your child is not getting the necessary financial support. Before filing for a divorce, you must convince the court about all the necessary arrangements required for the upbringing and future of the child.
- The judge can also refuse the divorce if you claim that the relationship ended because of your partner’s cruelty. The judge will pause until he gets solid proof of the allegations.
- The judge can also refuse a divorce if you are proven to be a fraud. He can simply dismiss the divorce if he believes that you and your spouse have planned this divorce to gain some personal benefits.
More info, How To Get A Divorce In Canada?
Alternatives to Automatic Divorce After Long Separation in Canada
Automatic divorce is one of the options for couples seeking a divorce in Canada. It can be considered one of the most convenient and cost-effective solutions. But there are some other alternatives to it:
Joint Application for Divorce
Instead of an automatic divorce, the couple can go for a joint application for divorce. In the joint application, both spouses will file for a divorce together. It may indicate that they have agreed to the child’s custody and division of property. Though this process requires a court hearing, it can be considered a faster, less expensive option.
Uncontested Divorce
An uncontested divorce is almost similar to a joint application for divorce. The uncontested divorce is done completely outside of the court. Here, the spouses agree on different terms and submit it to the judge for approval. This is a faster and more cost-effective option than the joint divorce application. However, this may only be an appropriate choice for some couples.
Contested Divorce
When both spouses disagree on the terms and conditions of divorce, this is called a contested divorce in Canada. The contested divorce requires a court hearing to resolve the case. This is a time-consuming and expensive option, but it becomes necessary when the spouses cannot agree.
To Conclude
Overall, there are no definite time limits beyond which a separation will result in a divorce. Automatic divorce is not legally possible. However, if any of the scenarios matches with the situations mentioned above, it can be a strong legal ground for divorce.
So, if you are separated and wish to get a divorce legally, make sure to get legal support from an experienced lawyer as soon as possible.
FAQs
How Long Do You Have to be Separated Before Divorce is Automatic in Canada?
You must stay at least 1 year separately from each other for a divorce in Canada. Although you can begin the process at any time during the 1 year period, you must wait until the year to appeal for a divorce.
Can You Get an Automatic Divorce After a Long Separation?
There is a common myth among people that if you stay 5 years plus separated from your spouse without any contact, you will get an automatic divorce. And thus, it will not require any paperwork/signing or anything to break the relationship. Well, always remember marriage is a legal bond that demands a legal separation (Divorce) to end the bond.
Can You Get a Divorce Without the Other Person Signing in Canada?
Yes, you can. You will not require your spouse’s consent to get a divorce. If both agree, the process goes smoothly. The divorce gets more complicated if the other person opposes and doesn’t want to consent.
Can You Stay Legally Separated Forever in Canada?
There is no specific time limit to stay separated. You can stay separated from each other for years after a divorce. If one of the partners wishes to remarry, they must appeal.
Can I Get a Divorce Within 3 Months of Marriage?
Getting a divorce within just 3 months of marriage is uncommon in Canada. However, if you have legal reasons, then you can definitely claim a divorce in civil court.
