Can You Get a Divorce After a Short Marriage in Ontario?

If your marriage lasted only a year or two, you may wonder whether you are too early to divorce, or whether a short marriage means you owe or are owed nothing. The answer is more nuanced than either assumption.

This article covers who can apply, how the separation period works, how property and support are approached, and the deadlines to watch.

Is there a minimum length of marriage?

No. The only ground for divorce is breakdown of the marriage, the other spouse does not have to consent, and no minimum length of marriage is required.

There are other requirements. A court in Ontario can hear a divorce only if either spouse has been habitually resident in Ontario for at least one year immediately before the proceeding is started. Breakdown is usually proved by living separate and apart for at least one year before the court decides the case, and the spouses must have been living apart when the proceeding started.

Ways to prove breakdown

Most people rely on the one-year separation. Three rules can affect how that works in a short marriage.

• Spouses count as living separate and apart for any period they lived apart while either one intended to live separately. Only one spouse needs to intend the separation.
• Living together again for a total of not more than 90 days, mainly to try to reconcile, does not interrupt the one-year period.
• Breakdown can also be proved without waiting a year if the spouse being sued committed adultery or treated the other with physical or mental cruelty that makes living together intolerable.

Fault grounds can be harder to prove, and the court must still be satisfied that arrangements are in place for any children. Many people simply wait out the year.

Property after a short marriage

Married spouses in Ontario generally share the growth in value of what each built during the marriage. Net family property is the value of all property a spouse owns on the valuation date, minus debts and the net value of property owned on the marriage date. The spouse with the smaller net family property is entitled to one-half of the difference between the two.

Several things matter in a short marriage. Gifts or inheritances from a third person after the marriage (other than a matrimonial home), personal injury damages and life insurance proceeds are generally excluded, as is property excluded by a domestic contract. Debts on the valuation date reduce a spouse's net family property.

The matrimonial home is different. No deduction is allowed for the value of a matrimonial home owned on the marriage date, so its full value is shared even if one spouse owned it before the marriage.

A court can award more or less than half of the difference if equalizing would be unconscionable. One listed factor is an amount that is disproportionately large compared with cohabitation of less than five years. That is a court's call, so do not assume you will or will not be affected.

Support, parenting and deadlines

In a divorce, the court can order the support it thinks reasonable, considering each spouse's condition, means, needs and other circumstances, including how long they lived together and the roles each played. Misconduct in the marriage is not considered. Lawyers and judges often use the Spousal Support Advisory Guidelines to help set amount and length, though they are only guidelines.

For children, the court considers only the child's best interests. Length of the marriage does not change that.

An equalization claim must be started by the earliest of 2 years after the divorce, 6 years after separation with no reasonable prospect of living together again, or 6 months after the first spouse's death. Both spouses also have an equal right to possession of a matrimonial home, whoever holds title. If only one spouse has an interest, the other's right of possession ends when they stop being spouses, unless an agreement or order says otherwise.

What to do next

• Write down your marriage date and the date you separated.
• List what each of you owned on the marriage date and on the valuation date, along with debts.
• Identify gifts, inheritances or insurance proceeds that may be excluded.
• Check your calendar against the equalization deadline.
• Update your will, since divorce affects gifts to a former spouse.
• Speak with a family lawyer about whether the unconscionability rule could apply to you.

If you are not legally married, the rules are different. Unmarried couples cannot divorce and are not legally required to split property acquired while living together.

Frequently asked questions