Area of Law: Family Law
Answer Number: 106
When can you get a divorce?Region: Ontario Answer Number: 106
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Divorce law in Canada
The main federal family law is the Divorce Act. The Act applies across Canada to married couples who have divorced or who have applied for a divorce. However, the process for getting a divorce is governed by provincial and territorial laws.
The Divorce Act sets out rules about the grounds for a divorce, child support when parents divorce, spousal support following a divorce, and custody and parenting arrangements for children after a divorce.
Provincial and territorial laws also have rules about child support, spousal support, and custody and parenting arrangements for children. However, these laws apply when an unmarried couple separates and when a married couple separates but does not apply for a divorce.
Grounds for divorce
To get a divorce under Canadian law you do not have to prove that one spouse did something wrong. Most divorces are granted on the basis of marriage breakdown. This is proven simply by showing that the spouses have lived separate and apart for one year before the granting of the divorce judgment.
Where divorce is sought on the grounds of physical or mental cruelty that makes the continuation of the marriage intolerable or upon the grounds of adultery, the divorce judgment can be granted without waiting for a year to pass. However, it is usually easier, less expensive, and less painful to wait for a year and divorce on the grounds of marriage breakdown.
Before commencing a divorce petition in Ontario, the court requires either one of the parties to have been resident in the province for at least one year. Also, it is not necessary for both spouses to apply for a divorce. A divorce can be granted even where the divorce is only sought by one spouse.
When can you apply for a divorce?
You can apply for your divorce as soon as you and your spouse separate. Although you need to have been separated from your spouse for at least one year before the court will legally grant your divorce, starting the process at the time of separation means that your divorce will be ready to be finalized at the end of the one-year separation.
What happens if spouses decide to move back together briefly?
During the one year separation, the law encourages spouses to try getting back together by allowing a trial reconciliation period. If you and your spouse decide to give your marriage another try at any point during the one-year separation period, you can move back in together and not affect your application for divorce if:
- you move in for a single period, or
- for multiple periods not exceeding 90 days.
If the attempted reconciliation does not work out, you will still be eligible for a divorce one year after your original separation date.
Although the court will generally grant a divorce if you show that your marriage has broken down, the judge will also want to make sure that you have made suitable arrangements for your children.
If you and your spouse are considering a divorce, you should consult with a lawyer.
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