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Separation and Divorce
106 When can you get a divorce?
- Grounds for divorceTo 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 prior to the granting of the divorce judgment. In other words, you do not have to wait for one year after separation before seeking a divorce. You can start proceedings immediately. The only limitation is that the court cannot grant a divorce judgment until the spouses have been separated for a year. 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 the court requires either one of the parties to have been resident in Ontario 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?Although you usually need to have been separated from your spouse for at least a year before the court will legally grant your divorce, you can apply for your divorce as soon as you and your spouse separate. This way, your divorce will be ready to be finalized once you and your spouse come to the end of your 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 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 you and your spouse 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.