- You can apply for divorce while you are living apart, but the full year of separation must pass before the divorce is granted.
- Living together again for no more than 90 days in total, mainly to try to reconcile, does not interrupt the year.
- A final divorce starts a two-year deadline to claim an equalization payment, which runs alongside the six-year limit from separation.
You have separated, or you are about to, and someone has told you that you must wait a year before you can even start a divorce. The real rule is a little different, and the difference can save you time and stress.
This article explains how the one-year rule works in Ontario, what happens if you try living together again, the exceptions for adultery and cruelty, and one deadline that many people miss after the divorce is final.
What the one-year rule actually says
Under the federal Divorce Act, the only ground for divorce is that the marriage has broken down. The Act gives a few ways to show that breakdown, and the most common is separation. The spouses must have lived separate and apart for at least one year before the divorce is decided, and they must have been living apart when the proceeding started.
Notice that the rule is about how long you have lived apart, not about how long you must wait before you file. That distinction is the heart of this question.
Can you apply right away?
Yes, in most cases. A spouse relying on a one-year separation does not have to wait a year to apply, as long as the spouses are living apart when they apply. What matters is that the year has passed before the divorce is granted.
In practice, this means you can start the process while the year is still running. Court steps take time, and the paperwork and any related issues can be worked on in the meantime. How long your own case will take depends on the facts, including whether the issues are agreed.
Does moving back in reset the clock?
Not always. Living together again does not interrupt the one-year separation if the time together lasted no more than 90 days in total and its main purpose was reconciliation. So a genuine attempt to work things out does not automatically send you back to day one.
The two conditions matter. If you were back together for longer than 90 days in total, or the main reason was not reconciliation, the answer may be different. Because dates and reasons can be argued about, keep a simple record of when you lived apart and when you did not.
| Situation | Effect on the one-year period |
|---|---|
| Back together for 90 days or less in total, mainly to reconcile | The year is not interrupted |
| Back together for more than 90 days in total | Not covered by this exception; get advice on how it affects your dates |
| Back together mainly for another reason | Not covered by this exception; get advice |
The adultery and cruelty exception
Separation is not the only way to show the marriage has broken down. A divorce based on adultery or cruelty can be applied for at any time, and the one-year wait does not apply.
These grounds can bring extra proof and extra conflict, and many people still choose the one-year route because it is more straightforward. Whether another ground makes sense for you depends on the facts, so it is worth talking it through with a lawyer.
When a divorce takes effect, and what you can sort out without one
A judgment granting a divorce does not usually end the marriage that day. A divorce usually takes effect on the 31st day after the judgment.
You also do not have to divorce in order to deal with the practical side of separating. Divorce is not required after separating, and Ontario's Family Law Act and Children's Law Reform Act deal with support and parenting for married couples who separate without divorcing, and for unmarried couples. Some of the issues you may need to settle include:
- Parenting arrangements and decision-making for children
- Child support and spousal support
- Division of property, which has its own deadlines
What to do next
The most important practical point is the property deadline. For married spouses, a court claim for an equalization payment must be started within six years after the day of separation, or two years after the divorce becomes final, whichever comes first. That means a final divorce can shorten the time you have, so do not treat the divorce as the end of your property questions. Courts may be able to extend a deadline in some situations, but that depends on the facts and should be confirmed with a lawyer.
- Write down the date you and your spouse began living separate and apart, and keep any proof.
- Note any periods you lived together again, how long they lasted, and why.
- List the support, parenting and property issues that still need to be settled.
- Mark the six-year and two-year property deadlines on a calendar.
- Speak to a lawyer before filing, especially if you are thinking of relying on adultery or cruelty, or if you lived together again for a while.
Frequently asked questions
Can I file for divorce the day after we separate?
Generally you can apply once you are living apart, because you do not have to wait a year to apply. The year of separation must be complete before the divorce is granted.
If we tried to reconcile, do we start the year over?
Not necessarily. Living together again does not interrupt the separation if it lasted no more than 90 days in total and its main purpose was reconciliation. Longer periods, or other reasons, may change the result, so confirm your situation with a lawyer.
Do I need to wait a year if the divorce is based on adultery or cruelty?
No. A divorce based on adultery or cruelty can be applied for at any time, and the one-year wait does not apply.
Do I need a divorce to get support or a parenting arrangement?
No. Divorce is not required after separating, and Ontario's Family Law Act and Children's Law Reform Act deal with support and parenting for married couples who separate without divorcing, and for unmarried couples.
Sources
- Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.) — Justice Laws (federal)
- Justice Canada – Fact Sheet: Divorce — justice.gc.ca
- Justice Canada – About Divorce and Separation — justice.gc.ca
- Ontario.ca – Dividing property when a marriage or common law relationship ends — ontario.ca
Links go to official government, court and regulator pages. The law changes — confirm you are reading the current version.
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