Do You Have to Be Separated a Year Before Divorce in Nova Scotia?

Many people ask whether they must wait a full year after separating before they can end a marriage. The short answer is that the year is the usual route, but it works in a more flexible way than most expect.

This article explains the federal Divorce Act rule that applies in Nova Scotia, the exceptions, how separation is counted, and what you can sort out while you wait. A lawyer can confirm how it applies to your facts.

This article covers the law of Nova Scotia.

The one-year rule in plain words

Under the Divorce Act, a court may grant a divorce on application by one or both spouses on the sole ground that the marriage has broken down.

Breakdown is established if the spouses have lived separate and apart for at least one year immediately before the divorce proceeding is determined, and were living separate and apart when it started. The test is tied to when the court decides the case, not only to the date you file.

Exceptions: adultery and cruelty

Breakdown can also be shown without waiting a year if the other spouse has committed adultery, or has treated the applicant with physical or mental cruelty that makes continued cohabitation intolerable.

These grounds need to be proven, which can mean more evidence, cost and conflict than simply waiting. Fault also does not carry over into every issue. For example, in spousal support the court does not consider misconduct. Many people choose the one-year route for that reason.

How separation is counted

• One spouse's intention is enough: spouses are deemed to have lived separate and apart for any period when they lived apart and either of them intended to live separate and apart.
• Reconciliation attempts are allowed: the one-year period is not interrupted or ended just because the spouses resumed living together for no more than 90 days in total, where the primary purpose was a reconciliation attempt.
• Living apart is the starting point: the rule refers to periods when the spouses lived apart.

If you are separated but still share a home, whether that counts depends on the facts and on how courts have treated it. Talk to a lawyer before relying on it.

What you can do before the year is up

The wording of the rule asks for one year immediately before the proceeding is determined, and that the spouses were living separate and apart when it started. That suggests the proceeding can begin before a full year has passed, as long as the year is complete when the court decides. A lawyer can confirm whether starting early makes sense for you.

Other issues, such as parenting and support, are worth thinking about while you wait. How they apply depends on your situation, so it is worth confirming with a lawyer. A court makes parenting decisions based on the best interests of the child, with primary consideration to safety, security and well-being. It also gives effect to the principle that a child should have as much time with each spouse as is consistent with the child's best interests.

For a child under the age of majority, child support is the table amount for the payor's province plus any section 7 amount. Different tests apply in some cases, such as a child who has reached the age of majority, shared parenting where each parent has the child at least 40% of the time over a year, split parenting, and undue hardship. Spousal support looks at each spouse's condition, means, needs and circumstances, including the length of cohabitation and the functions each performed.

What to do next

• Write down your separation date and what you did, and whether anyone moved out.
• Record any reconciliation attempts with dates, since the 90-day limit applies in total.
• Gather income records and a list of debts and assets.
• Decide whether you will apply alone or jointly. A joint application where you agree on all issues can go to a judge without a hearing.
• Choose the right forms, such as Form 59.46, Form 59.09 or Form 59.45.

Divorces are heard in the Supreme Court of Nova Scotia (Family Division). The court must also satisfy itself that there has been no collusion in relation to the application. A divorce takes effect on the 31st day after the judgment is rendered, and the certificate is issued only after the appeal period has passed.

Frequently asked questions