Can You Divorce Without Waiting a Year Because of Abuse in Nova Scotia?

Leaving an abusive marriage is hard enough without being told you must wait a full year before you can apply for a divorce. Many people ask whether the law really makes you wait, and whether what happened to you counts.

This article explains how the federal Divorce Act treats the one-year rule, when cruelty can be an exception, and how a contested divorce moves through the Nova Scotia court. It is general information, not advice on your situation. If you are not safe, your safety comes first.

This article covers the law of Nova Scotia.

The ground for divorce and the usual one-year route

Under the Divorce Act, a court may grant a divorce on the application of one or both spouses on one ground only: that the marriage has broken down. You do not have to prove who was at fault in order to get a divorce.

The usual way to show breakdown is to have lived separate and apart for at least one year immediately before the divorce proceeding is decided, and to have been living apart when it started.

One spouse's intention is enough. Spouses are treated as living separate and apart for any period when they lived apart and either of them intended to stay separated. Your spouse does not have to agree that the marriage is over.

The cruelty exception to the one-year wait

The Act lets breakdown be shown without waiting a year if your spouse committed adultery, or treated you with physical or mental cruelty that makes continued living together intolerable. Cruelty can be physical or mental, so it is not limited to violence.

The table below compares the two routes.

Whether your circumstances meet the cruelty test depends on the facts and on the evidence you can offer. A lawyer can tell you how a court is likely to see your situation.

Separation rules that can affect your timing

Even if you rely on the one-year route, some details matter. If you and your spouse get back together to try to reconcile, the year is not interrupted or ended as long as you lived together for no more than 90 days in total and the main purpose was reconciliation.

The court must also satisfy itself that there has been no collusion in relation to the divorce application. In plain words, spouses should not be cooking up a false story to get a divorce. Describing events honestly protects you.

• Keep a record of the date you separated and who moved out.
• Note any short periods of living together again and why.
• Keep honest, dated notes and any records of incidents, such as messages or medical records.

How a contested divorce works in Nova Scotia

Divorces are heard in the Supreme Court of Nova Scotia (Family Division). Since January 1, 2022, family law matters in the province are handled under Rule 59 of the Civil Procedure Rules.

Joint applications, where spouses agree on everything, use Form 59.46 and can go to a judge without a hearing. The court's divorce forms also include Form 59.09 (Petition for Divorce) and Form 59.45 (Application for Divorce by Agreement), so which one fits depends on your situation.

Once your spouse is served, the time to respond is 15 days if served in Nova Scotia, 30 days elsewhere in Canada and 45 days anywhere else. Court practice forms for divorce include FD 12B for a petition, and the court notes its web versions are unofficial, with the Civil Procedure Rules Part 22 forms being the official ones.

A divorce takes effect on the 31st day after the judgment granting it is rendered. The court's divorce certificate is issued only after the divorce is granted and the appeal period has passed.

Parenting, support and safety, and what to do next

In parenting and contact orders, the court considers only the child's best interests, with primary consideration to the child's physical, emotional and psychological safety, security and well-being. Family violence and its impact is one of the factors the court looks at.

For spousal support, the court looks at each spouse's condition, means, needs and circumstances, but misconduct is not to be considered. So proving cruelty to shorten the wait does not by itself change support.

If you need urgent protection, an emergency protection order under the Domestic Violence Intervention Act is applied for by telephone. A victim may apply between 9:00 am and 9:00 pm, while peace officers, Victim Services staff and designated transition house staff may apply at any time. A judge must review the order within 7 business days after receiving it and the supporting documentation. How long an order lasts is worth confirming with a lawyer or Victim Services.

• If you are in danger, reach out first to the police, Victim Services or a transition house, since peace officers, Victim Services staff and designated transition house staff can apply for an emergency protection order at any time.
• Write down dates, events and witnesses while memories are fresh.
• Gather marriage details, children's information and income records.
• Speak with a family lawyer about whether the cruelty route fits your facts.
• Ask about legal aid if cost is a worry, since family matters are covered in some cases.

Frequently asked questions