Divorce or Separation?

One of the most common questions that people ask is: “What’s the difference between a divorce and a separation?”, or “When am I legally separated, and when am I divorced?”

While a divorce requires a court order; a separation does not.  In fact, you don’t ever need to go to court in order to be separated.  For the purpose of family law, parties are deemed to be “separated” when they are living “separate and apart”.  This usually means that the parties are physically apart and are living in different homes, however this is not always the case, as is described below.

Getting a divorce is not mandatory.  Some married spouses elect to end their relationship by simply separating and entering into a separation agreement.  On the other hand, a divorce is mandatory if at least one of the spouses seeks to re-marry.  In that instance, either of the spouses, or both, may bring an application for a divorce in the Superior Court of Justice or the Unified Family Court.  A Divorce Order and a Certificate of Divorce must be secured from the court to re-marry.

The court will only entertain an application for a divorce if either spouse has been ordinarily resident in the province for at least one year immediately preceding the commencement of the proceeding.

A divorce may be granted any one of three grounds, namely: 1) one-year separation; 2) adultery; and 3) cruelty.

One Year Separation

This is the most common and easiest way to obtain a divorce.  Essentially, the spouses have lived separate and apart for a period of 12 months or more with no chance of a resumption of cohabitation or reconciliation.  The court will not grant the divorce unless and until the one year mark has elapsed.  However, either of the spouses, or both, may commence an application for a divorce at any time after they separate.  The court will simply not process the divorce claim unless and until the one year mark has elapsed.

Separated under the same roof

It is also possible for spouses to live under the same roof and be separated.   The length of time they are separated and living under the same roof will be considered in the requirement of being separated for at least 12 months with no chance of reconciliation.  Being separated and under the same roof is becoming more common given the time and expense required to secure alternate living accommodations for either spouse and/or the children.

To be considered separated, most often what is required, regardless of whether the spouses live in one residence or two, is: there must be a physical separation (living in the same house does not negate physical separation especially if the spouse is remaining there due to economic necessity); and there must be a withdrawal by one or both spouses from the matrimonial obligation with the intent of destroying the matrimonial consortium, or of repudiating the marital relationship.

Other factors that are considered include, but are not limited to: the absence of sexual relations; discussions of family problems and communication between the spouses; presence or absence of joint social activities; meal patterns; the performance of household tasks with weight given to those which are peculiar to the spousal relationship; and whether a spouse has filed income tax returns as “separated” or “married”.

The period of separation will not be stopped if a separated couple decides to resume cohabitation for the purposes of reconciliation for a period not exceeding 90 days. If the 90 day mark has passed and then the spouses separate once again they will have to wait a full 12 months to obtain their divorce under this ground for divorce.

This furnishes the spouses with an opportunity to attempt to resolve issues in order to reconcile without being punished for their attempt should it fail.

Only victims of adultery can claim this ground.  If you are able to satisfy the court that your spouse has committed adultery against you then the court has the authority to grant an immediate divorce and the one year separation period may be waived.

If you are able to show the court that your spouse has treated you cruelly during your marriage then the court may be able to grant you an immediate divorce and waive the one year separation period.

Some examples of conduct which the court has considered to be cruel:

  1. A series of assaults OR one attack which was brutal and severe; and
  2. Persistent harassment and abuse, such as incessant name-calling.

Notwithstanding the fact adultery and cruelty often lead to the breakdown of a marriage they are rarely claimed as grounds for divorce. It is easier to simply separate for the requisite one-year period then it is to re-visit the emotional pain and engage in protracted and expensive litigation for the purposes of proving either adultery or cruelty.

If you are able to satisfy any one of three grounds, namely: one year separation; adultery; and cruelty resulting in a breakdown of your marriage the court will generally grant you a divorce.

BARS TO DIVORCE – Reasons the Court will deny you a divorce
In certain circumstances the court will refuse to grant a divorce despite a breakdown of the marriage.  They include 1) collusion, 2) connivance, 3) condonation, or 4) lack of reasonable arrangements.

Collusion is defined in the Divorce Act as any agreement or conspiracy to which an applicant for a divorce is either directly or indirectly a party for the purpose of subverting the administration of justice, and includes any agreement, understanding or arrangement to fabricate or suppress evidence or to deceive the court, but does not include an agreement to the extent that it provides for separation between the parties, financial support, division of property or the custody of any child of the marriage.
An example of collusion would be where a couple agrees to lie about their actual date of separation so to obtain a divorce judgment at an earlier date.

Connivance occurs when the spouse requesting the divorce has encouraged the other to commit a matrimonial offence so that there are grounds for divorce.This bar only applies to situations contemplating adultery or cruelty as a ground for divorce.This bar is discretionary in that the court may still grant a divorce notwithstanding condonation if it would be in the public’s best interest to do so.

This bar also only applies to divorce applications brought on the grounds of adultery and cruelty. Condonation occurs when a spouse, with knowledge of the offence, forgives the offence and continues or resumes cohabitation with the guilty spouse. However, mere cohabitation is not sufficient to prove condonation.  Instead, it must be coupled with an actual intention to forgive and to be reconciled on the part of the wronged spouse.

If a spouse has condoned a past act of adultery or cruelty, he or she is prohibited from reviving that act and using it as a ground for divorce in a later application. Just like connivance this bar is discretionary in that the court may still grant a divorce notwithstanding condonation if it would be in the public’s best interest to do so.

Lack of Reasonable Arrangements
Lastly, if the couple that is applying for a divorce has children and reasonable arrangements have not been made for their support the court may stay the granting of the divorce until such arrangements have been made.

This bar is discretionary since the court must be satisfied that the arrangements made are reasonable prior to granting the divorce. The court may satisfy itself by taking into consideration the guidelines amount, written agreements between the spouses and any special circumstances surrounding the specific case that may or may not make the arrangements reasonable for the support of the children.

Therefore, once the spouses have made an application for a divorce based on a breakdown of their marriage, reasonable arrangements for the support of the children have been made and there is no evidence that they colluded, connived or condoned the court may grant a divorce dissolving the marriage.

After the divorce is granted it will take effect on the thirty-first day after the day on which the judgment granting the divorce is rendered. This will apply unless special circumstances exists making it necessary that the divorce take effect immediately. However, before the court may do this the parties must agree that they will not appeal the judgment. If instead the parties choose to appeal the judgment then the effective date of the divorce is the day on which the appeal process is exhausted.

You have 31 days to appeal a divorce judgment. Once the effective date has been reached either spouse should apply for a Certificate of Divorce stating that a divorce has been granted and has dissolved the marriage.This certificate is conclusive proof of the formal divorce judgment rendered.

The Divorce Act stipulates that a divorce may be recognized in Canada if either former spouse was ordinarily resident in that country for at least one year immediately preceding the commencement of the proceeding for the divorce.  There are other situations under the act that may recognize the foreign divorce.

The lawyers at the Masellis Family Law Group have extensive knowledge and experience in separation and divorce matters. Our lawyers and staff are committed to protecting your legal rights, and getting you the most just and fair outcome possible.  Whatever your needs are we, at the Masellis Family Law Group, encourage you to contact us for a free, no obligation, confidential 30 minute in person consultation to discuss your matter.  We are here to help.

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