- The only ground for divorce under the Divorce Act is breakdown of the marriage, and living separate and apart for at least one year is the usual way to show it.
- You can skip the one-year wait only if the other spouse committed adultery or treated you with physical or mental cruelty that makes continued cohabitation intolerable.
- Even after a judgment, a divorce takes effect on the 31st day, with an early date only in special circumstances.
Many people who decide to end their marriage ask the same thing: do we have to wait a full year? The short answer is that one year apart is the usual route, but the law has a few details that can change how the timing works for you.
This article explains how the Divorce Act treats breakdown of the marriage, what counts as living separate and apart, how a short attempt to get back together is handled, and when a divorce actually takes effect. Your own facts matter, so a lawyer can confirm how these rules apply to you.
Breakdown of the marriage is the only ground
Under the federal Divorce Act, the only ground for divorce is breakdown of the marriage. You do not have to prove who was at fault in most cases. Instead, the Act lists ways of showing that the marriage has broken down.
There are two main ways: living separate and apart for at least one year, or the other spouse's adultery or cruelty. Only legally married couples can divorce.
The usual route: one year separate and apart
Breakdown is shown if you and your spouse have lived separate and apart for at least one year before the divorce is decided, and you were living separate and apart when the case started. This means you can start the case before the year is complete, as long as you were already separated at that point and the full year has passed before the divorce is decided.
Separation is judged partly by intention. You are treated as having lived separate and apart for any period during which you lived apart and either spouse intended to live separately. So the intention of just one spouse can be enough.
Some couples separate but keep living in the same house. There is no fixed test for that situation, and courts look at the facts of each case. A lawyer can explain what a court may consider when deciding whether spouses are separated.
Trying to reconcile and the court's role
A failed attempt to get back together does not automatically restart the clock. The one-year period is not treated as interrupted if you resumed living together for one or more periods totalling not more than 90 days, mainly to try to reconcile.
Before it considers 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. A lawyer acting for a spouse must also discuss the possibility of reconciliation with the client, and must encourage the client to try a family dispute resolution process, unless the circumstances clearly make that inappropriate.
- Keep a simple record of the dates you lived apart.
- Note any periods you lived together again and why.
- Tell your lawyer about any attempt to reconcile, however short.
The exception: adultery or cruelty
You do not need to wait one year 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.
When a divorce rests on adultery or cruelty, the court must also satisfy itself that the spouse bringing the proceeding has not condoned or connived at it. Condoning means forgiving the conduct, and conniving means helping bring it about. Living together again for 90 days or less, mainly to try to reconcile, is not condonation.
| Route | What must be shown |
|---|---|
| One year apart | Separate and apart for at least one year before the divorce is decided, and separated when the case started |
| Adultery or cruelty | The other spouse committed adultery or physical or mental cruelty that makes continued cohabitation intolerable |
Whichever route is used, you may still need to prove it, so it is worth speaking with a lawyer before relying on the exception.
When the divorce takes effect and what to do next
Even once a judge grants a divorce, it takes effect on the 31st day after the day the judgment is made. A court may order an earlier date only if special circumstances justify it and the spouses agree and undertake that no appeal will be taken, or any appeal has been abandoned. Once it takes effect, the divorce dissolves the marriage and has legal effect throughout Canada.
- Write down the date you and your spouse separated and who intended to separate.
- Gather your marriage certificate and details of any time you lived together again.
- Think about support, parenting and property, since a divorce on its own does not settle them.
- Speak with a family lawyer about which route fits your facts and timing.
Frequently asked questions
Do I have to wait a year before I can file for divorce in Ontario?
Not necessarily. You can start the case before the year is up if you were already living separate and apart when it started, as long as the full year is complete before the divorce is decided.
Does getting back together for a while restart the one-year clock?
Not if you resumed living together for one or more periods totalling not more than 90 days, mainly to try to reconcile. Longer periods together may affect the calculation, so get advice on your dates.
Can we be separated while living in the same home?
It can be possible, but no fixed test applies and it is decided on the facts of each case. A lawyer can explain what a court may consider.
Is the divorce final as soon as the judge grants it?
No. It takes effect on the 31st day after the judgment is made, unless the court orders an earlier date because of special circumstances.
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. 7.7 — Justice Laws (federal)
- Department of Justice Canada – About Divorce and Separation — justice.gc.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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