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Understanding Marriage Separation and Grounds for Divorce

There are specific requirements for getting a divorce under Canadian law. One of the requirements is a mandatory one-year waiting period from the time of separation before a divorce can be finalized. Often people mistakenly assume they must wait a year from the time they legally file for a divorce for it to be finalized, but that is not the case.

In reality, the court will recognize the actual date when a couple separated and began living “separate and apart”, regardless of when the divorce paperwork was actually filed. For instance, you and your spouse separate and started living apart in October last year, but neither party files for the actual divorce until May of this year. The court will acknowledge that the separation occurred seven months ago, and thus, there would be only another five months to wait for the divorce to be finalized.

Another thing that should be understood is that there is no legal filing for separation. Rather, you are considered “legally separated” the moment you start living “separate and apart”, even if you are still living under the same roof. Some couples make the assumption they must file for divorce to be considered legally separated. This is wrong.

People get this is confused because the term “legal separation” is often used to refer to the separation agreement the couple has agreed to and signed which addresses various issues, such as spousal support, child support, and child custody and visitation. This often resolves what are known as “corollary issues” during the waiting period leading up to the actual divorce, but the divorce itself requires a waiting period of one year. If there is a separation agreement, that document will spell out the date of separation for the purpose of obtaining a divorce.

Types of Divorce

There are two specific types of divorce in Canada: “No Fault” and ” Fault”. The vast majority of divorces are handled as “No Fault” divorces, where the divorce itself is not contested and the only element to be considered is the length of separation, which must be one year. Parties may contest various issues as part of a divorce proceeding – support payments, child custody, access, and division of property- these are corollary issues. But again, aside from these issues, the actual divorce is still considered to be uncontested, unless of course the parties cannot agree on the date of separation.

In “Fault” divorce proceedings, one party can file for divorce on the basis of cruelty or adultery, and thus has to prove the other person is at fault for the failure of the marriage on those grounds. While the law does allow for “Fault” filings, they tend to take longer to finalize than ‘”No Fault” divorces. Furthermore, “Fault” divorces can be more costly. Even if you have proof of a cheating spouse or an abusive domestic situation, it can be better to file for a “No Fault” divorce in order to avoid the added stress, cost, and time needed to finalize a ” Fault” divorce, since you have to prove the alleged fault in court, whereas a no fault divorce requires a simple confirmation that parties have been separated for a year.

Regardless of the reasons for the divorce, every couple’s situation is different, and is based on unique facts. It is for this reason that, even in amicable divorce proceedings, it is highly recommended to consult with your own Ottawa divorce lawyer to obtain sound legal advice to help you make the best decisions for you, your family and your future.

Please feel free to contact Davies Law Firm at 613-688-0462 to arrange a consultation with one of our Ottawa family lawyers today, for more information about filing for divorce, separation agreements, or other family law matters.

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