Does Living Together Again Reset the One-Year Clock?

Many couples try again before they accept that a marriage is over. If you moved back in together, even briefly, you may worry that the year you had already counted has been wiped out.

The Divorce Act deals with this directly, and the rule is more forgiving than many people expect. This article explains how the 90-day rule works, what it does not say, and how to keep track of your dates. It is general information, not legal advice.

The one-year separation rule

The only ground for divorce is breakdown of the marriage. It is established where the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding. Spouses are deemed to have lived separate and apart for any period during which they lived apart and either of them intended to live separate and apart from the other.

Separately, an Ontario court has jurisdiction only if either spouse has been habitually resident in the province for at least one year immediately before the proceeding starts. That residence test is different from the separation test, though many people meet both at the same time.

What the 90-day rule says

The Act protects couples who attempt to reconcile. The one-year period is not interrupted or terminated if the spouses resumed cohabitation for a period, or periods totalling, not more than 90 days with reconciliation as its primary purpose.

Three details matter. First, the 90 days is a total across all attempts, not a limit per attempt. Second, the purpose has to be reconciliation, as the primary purpose. Third, the rule speaks to whether the clock is interrupted. How the days you lived together are counted is worth confirming with a lawyer.

If you are close to the 90-day line, or unsure what the primary purpose was, get advice before you file.

Why the dates matter beyond the divorce

The separation date is not only about when you can divorce. For property, net family property is the value of property at the separation date, minus debts and excluded property, less the same net value at the date of marriage, and the spouse with the larger amount pays half the difference as an equalization payment. Court applications for an equalization payment must be made within six years of separation or two years after the divorce is final, whichever comes first.

Where the separation date is placed can therefore change the numbers and the deadlines. If you and your spouse see the reunion differently, one of you may argue for a different date. How a reconciliation attempt affects the date used for property is a question for a lawyer, because it turns on the facts.

• Divorce timing: a year of separation before the divorce is decided.
• Property: values are taken at the separation date.
• Deadline: six years from separation or two years after the divorce is final, whichever comes first.
• RRSP transfers between spouses on breakdown require that the parties are living separate and apart and that the transfer is made under a court order or written separation agreement.

Reconciliation, the court and your children

In a divorce proceeding, it is the court's duty to satisfy itself that there is no possibility of reconciliation of the spouses, unless the circumstances make that inappropriate. It is one of the court's checks, and a genuine attempt that failed is part of your history.

If you have children, the court must be satisfied that reasonable arrangements have been made for their support before granting a divorce. Spouses must also, to the best of their ability, protect any child of the marriage from conflict arising from the proceeding. A reunion that ends badly can be hard on children, so keep their routine steady.

If you need orders while you sort things out, parties commonly ask for temporary orders on child or spousal support, parenting schedules, or who lives in the family home. If safety is a concern at any point, a restraining order is available to people who were married or lived together for any period, or who have a child together.

What to do next

Good records are the most useful step you can take, because the 90-day rule depends on dates and purpose.

• Write down the date you first separated and the date you finally separated.
• List each period you lived together again, with start and end dates, and count the total days.
• Note why you moved back together and whether the aim was to reconcile.
• Keep messages, counselling records or notes that show the purpose of the reunion.
• Gather your marriage certificate and financial records, since the court will not grant a divorce without the original marriage certificate, unless a Form 36 affidavit explains why it cannot be provided.
• Ask a family lawyer to confirm how your dates fit the Act before you file.

If your spouse files first, a respondent served in Canada or the United States must serve and file an Answer (Form 10) within 30 days. Do not wait to get advice.

Frequently asked questions