- The usual ground for divorce is marriage breakdown shown by living separate and apart for at least one year.
- The one-year period is not treated as interrupted if you resume living together for periods totalling not more than 90 days, mainly to try to reconcile.
- Trying again can still affect other things, such as property dates and what the court considers, so it helps to understand them first.
Many couples try again during a separation. You might move back in for a few weeks to see whether things can work, then decide it cannot. A common worry is whether that attempt wipes out the time you have already been apart.
This article explains how the one-year separation rule treats a short reconciliation, and some related points to think about. Your own dates and living arrangements matter, so a lawyer can confirm how the rules apply to you.
The one-year separation rule
The only ground for divorce under the federal Divorce Act is breakdown of the marriage. Breakdown is shown if the spouses have lived separate and apart for at least one year before the divorce is decided and were living separate and apart when the proceeding started.
Spouses are treated as having lived separate and apart for any period during which they lived apart and either spouse intended to live separately.
There is an exception to the one-year wait. Breakdown is also shown if the spouse the proceeding is brought against has, since the marriage, committed adultery or treated the other spouse with physical or mental cruelty that makes continued cohabitation intolerable.
How a short reconciliation affects the year
The Divorce Act protects couples who try again. The one-year separation period is not treated as interrupted if the spouses resumed living together for one or more periods totalling not more than 90 days, mainly to try to reconcile.
- The 90 days is a total across all the periods, not a limit on each one.
- The purpose matters: the rule refers to living together mainly to try to reconcile.
- If you live together for longer than that, the effect on your timeline depends on the facts, so ask a lawyer before relying on the earlier separation date.
It can help to keep a simple record of when you moved back in, when you separated again, and why. Messages, leases and other documents can support your dates.
Other places reconciliation can matter
The court itself looks at reconciliation. Before considering the evidence, it must satisfy itself that there is no possibility of the spouses reconciling, unless it would clearly be inappropriate to do so. A lawyer acting for a spouse must also discuss the possibility of reconciliation with the client, unless the circumstances clearly make that inappropriate.
If the divorce is based on adultery or cruelty, the court must also satisfy itself that the spouse bringing the proceeding has not condoned or connived at it. Living together again for 90 days or less, mainly to reconcile, is not condonation.
Reconciling can also touch property. One possible valuation date for equalization is the date the spouses separate with no reasonable prospect of resuming cohabitation. Whether a trial period changes that date depends on the circumstances, so get advice if property is significant.
Living under the same roof
Some couples separate but keep living in the same house. Federal Justice guidance notes this happens and says a lawyer can explain what courts may consider when deciding whether spouses are separated. If you are in this situation, write down when and how the relationship changed, and speak with a lawyer about the arrangement.
What to do next
Whether you reconcile or not, a few steps can protect you. Some couples also use a process outside court. The Divorce Act refers to family dispute resolution processes, which include negotiation, mediation and collaborative law.
- Write down the date you separated and the dates of any time back together.
- Note why you moved back in, since the rule refers to a mainly reconciliation purpose.
- Keep documents that show where each of you lived.
- Avoid assuming a longer stay together will not change your timeline.
- Speak with a family lawyer before starting or pausing a divorce.
Frequently asked questions
Does moving back in restart the one-year clock?
Not if the time together is short and for reconciliation. The one-year period is not treated as interrupted if you resumed living together for periods totalling not more than 90 days, mainly to try to reconcile. For longer stays, it depends on the facts.
Do we need to be in different homes to be separated?
Spouses are treated as separate and apart for a period when they lived apart and either spouse intended to live separately. Some couples separate while living in the same house, and a lawyer can explain what courts may consider.
Can I skip the one-year wait?
Breakdown can also be shown by adultery or by physical or mental cruelty that makes continued cohabitation intolerable. These apply to the spouse the proceeding is brought against.
Will the court ask whether we might reconcile?
Yes. Before considering the evidence, the court must satisfy itself that there is no possibility of the spouses reconciling, unless it would clearly be inappropriate to do so. Lawyers must also discuss reconciliation with their clients, unless the circumstances clearly make that inappropriate.
Sources
- Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 8 — Justice Laws (federal)
- Department of Justice Canada – How to Apply for a Divorce — justice.gc.ca
- Divorce Act, s. 10(1) — Justice Laws (federal)
- Divorce Act, s. 2(1) definition of 'family dispute resolution process' — Justice Laws (federal)
- Divorce Act, s. 7.7 — Justice Laws (federal)
- Family Law Act, s. 4(1) 'valuation date' — Ontario e-Laws
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