- The only ground for divorce under the federal Divorce Act is breakdown of the marriage.
- Breakdown is shown by one year of living separate and apart, or by adultery or cruelty by the other spouse.
- A divorce takes effect on the 31st day after the judgment is made, unless the court orders an earlier date in special circumstances.
If you are thinking about ending your marriage, it helps to know what the law actually requires. In Ontario, divorce is mainly governed by a federal law, and it asks a narrower question than most people expect. It is not about who was at fault or who wants out more.
This article explains the legal basis for divorce, the three ways breakdown of a marriage can be shown, and what a court checks before it grants a divorce. It is general information, not advice on your own situation.
What a divorce is, and which law applies
A divorce is a court order officially ending a valid marriage, and only legally married couples can divorce. Common-law partners do not divorce, although other family laws may still apply to them.
The legal ground comes from the federal Divorce Act, and the steps for starting a case in Ontario come from the Family Law Rules. Either spouse may start a divorce case, or both can apply together in a joint application.
An annulment is different. It says the marriage was never valid, and in Ontario it is not governed by the Divorce Act. Whether a marriage was valid can turn on basics such as free and enlightened consent of two persons, a minimum age of 16, and every previous marriage having been dissolved.
The one ground: breakdown of the marriage
The only ground for divorce under the Divorce Act is breakdown of the marriage. You do not need to prove that your spouse did something wrong in most cases. The Act lists three ways to show that the marriage has broken down.
| How breakdown is shown | What the Act requires |
|---|---|
| Separation | 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 |
| Adultery | The spouse the proceeding is brought against has committed adultery since the marriage |
| Cruelty | That spouse has treated the other with physical or mental cruelty that makes continued cohabitation intolerable |
Adultery and cruelty are the exception to the one-year wait. Even so, many people rely on separation because it avoids having to prove misconduct.
What counts as living separate and apart
Spouses are treated as having lived separate and apart for any period during which they lived apart and either spouse intended to live separately. So the intention of just one spouse can be enough.
A short attempt to get back together does not necessarily restart the clock. The one-year 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.
If you and your spouse are still under one roof, whether you count as separated depends on the facts, and a lawyer can explain what courts may consider.
What the court checks before granting a divorce
- 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.
- The court must be satisfied that there has been no collusion, and that reasonable arrangements have been made for the support of any children of the marriage.
- If the divorce is based on adultery or cruelty, the court must also be satisfied 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.
A divorce takes effect on the 31st day after the day the judgment granting it is made. The court may order an earlier date 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, and a certificate can be issued on request.
What to do next
Parties to a Divorce Act proceeding must try to resolve the matters through a family dispute resolution process where appropriate, such as negotiation, mediation or collaborative law. A lawyer acting for a spouse must also discuss the possibility of reconciliation and encourage the client to try such a process, unless the circumstances clearly make that inappropriate.
- Confirm that your marriage is a valid, legal marriage.
- Work out which way of showing breakdown fits your situation, and when you and your spouse began living separate and apart.
- Gather your marriage certificate and records of the separation.
- Think about the issues a divorce does not settle by itself, such as parenting, support and property.
- Speak with a lawyer before filing, especially if adultery or cruelty is involved.
A simple divorce application is for divorce only, and no other claim such as support or property can be made in it.
Frequently asked questions
Do I need my spouse's agreement to get a divorce in Ontario?
Not necessarily. Either spouse may start a divorce case by naming the other as respondent, or the spouses can file a joint application. In a joint application, the divorce and any other order can be made only with the consent of both spouses.
Can I divorce right away if my spouse had an affair?
Adultery is an exception to the one-year separation wait, so it can show breakdown without it. The court must also be satisfied that you have not condoned or connived at it. A lawyer can explain what proof may be needed.
Does getting back together for a while stop my separation clock?
Not if it is brief. 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. Longer periods may affect the timeline, so get advice.
When am I actually divorced?
A divorce takes effect on the 31st day after the judgment granting it is made. The court may set an earlier date in special circumstances if the spouses agree and undertake that no appeal will be taken, or any appeal has been abandoned.
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 Rules, O. Reg. 114/99, r. 36(1) — Ontario e-Laws
- Superior Court of Justice – The Steps in a Family Case — ontariocourts.ca
- Annulment of Marriages Act (Ontario), R.S.C. 1970, c. A-14, s. 2 — Justice Laws (federal)
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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