The terms “divorce” and “separation” are often confused and used interchangeably in many cases. This confusion can have serious implications, especially for spouses preparing to move on with life.
A spouse can divorce a partner following a long separation. This concept is known as automatic divorce in family law. The long absence from your partner is the legal basis for claiming divorce.
As per Canada’s Common Law, not all long separations qualify for an automatic divorce. That said, an automatic divorce is subject to specific conditions to be explored later in this article from our divorce lawyer Toronto.
Separation vs. Divorce
Separation occurs when spouses live away from each other due to personal differences. On the other hand, divorce arises when spouses terminate their matrimony officially and legally.
Divorce involves a legal process, unlike separation. In other words, you must go to court to initiate divorce, while separation simply involves living away from your partner while still married to each other.
Marriage Separation and the Law
The law on marriage separation varies by jurisdiction. However, it involves legal requirements for dividing property, determining custody and support of children, and establishing spousal support.
Separation agreements are voluntarily entered into by the spouses in some cases. In other cases, court orders are required to resolve disputes. It’s important to consult a family lawyer for guidance on the specific laws related to marriage separations.
Legal Separation Agreements
Legal separation agreements are legally binding contracts that outline the terms of separation between spouses or common-law partners. The contents of legal separation agreements can include division of property, child custody, child support, and spousal support issues.
Legal separation agreements are similar to divorce settlements, but couples remain legally married or in common-law relationships. These agreements can be entered into through:
- Negotiations between the spouses
- With the assistance of a family lawyer, or
- With the help of mediators
A legal separation agreement must be signed by both parties and witnessed to be binding and enforceable.
Does Long Separation Automatically Nullify Marriage?
Long separation doesn’t nullify marriage until a divorce is claimed. As discussed above, separation isn’t divorce, even when spouses separate for a long time.
Your marriage must be nullified through the courts to be considered divorced. Once divorced, you’re free to marry another partner. Without obtaining a divorce certificate, you’re legally considered married, whether separated or cohabiting with your spouse.
What’s Considered Long Separation in Automatic Divorce Cases?
Let’s rephrase the question in layman’s terms: How long do you have to be separated before divorce is automatic in Canada?
Unless you apply for divorce, separation (long or short) doesn’t lead to automatic divorce. On the other hand, automatic divorce can result from a long separation in exceptional cases. It sounds confusing, but we’ll help you understand.
In Canada, a long separation can be the basis for filing an automatic divorce. However, this only applies if spouses haven’t cohabited for at least one year and there is no hope for reconciliation.
Automatic Divorce vs. Rightful Divorce
Automatic divorce refers to terminating a marriage that is granted without a court hearing or the input of spouses. The specific requirements for an automatic divorce can vary depending on the jurisdiction.
A rightful divorce occurs when a marriage is legally dissolved. A spouse can divorce their partner even when separation isn’t intentional.
For instance, long hospitalizations and traumatic brain injuries are common causes of many rightful divorces. In other words, a spouse who’s tired of waiting for an unintentionally separated partner can file for divorce.
Conditions for Automatic Divorce in Canada
Automatic divorces are granted when specific prerequisites are met. Here’s when automatic divorce can arise:
One-Year Separation Automatic Divorce
There are no legal separation time frames for automatic divorces in Canada. However, courts consider a one-year absence to be the minimum threshold for automatic divorces.
Proving the one-year absence can vary by state laws. However, you must provide sufficient proof that your spouse was absent for 365 consecutive days. Allowable proof can include the following:
- Documents showing that you were searching for your spouse
- Statements from witnesses, or
- Any proof that your spouse has been absent for 1 year or more
Death of a Spouse
“Till death do we part.” This is a common phrase at many weddings. As the phrase suggests, the death of a spouse potentially triggers automatic divorce for the surviving spouse.
Permanent Absence
Is divorce automatic after 10 years? Long absence from marriage for a minimum of seven years is considered permanent separation. That said, a 10-year absence from marriage triggers automatic divorce.
Domestic Violence
Domestic violence is blamed for many marital challenges, including divorce. Spouses can separate or live separately due to domestic violence.
A long separation resulting from domestic violence can be a legal ground for automatic divorce. The assault claim cited can help the plaintiff receive the deserved justice or rightful compensation.
Timelines for Divorce Proceedings in Canada
The timelines for divorce proceedings in Canada vary by the facts of your case and the province where the divorce is filed. Uncontested divorces can settle in a few months, while contested divorces can take much longer, even years.
How long between separation and divorce should I wait? In most provinces, you must wait at least one year from the date of separation to be granted a divorce. It’s best to consult a family lawyer or your local court for more specific information on the timeline for divorce proceedings in your area.
The divorce process involves completing forms and submitting them along with supporting documents. This process can be longer if you submit the wrong documents or fill the forms incorrectly.
Divorce cases involve two parties, so your spouse must be given sufficient time to respond to your claims. Whether your spouse is guilty of the stated claims, they must be allowed to defend themselves.
On average, uncontested divorce cases take between four and six months to resolve. That’s according to the Attorney General’s website in Ontario.
Divorce Without Mutual Consent
Mutual consent is required in divorce cases. However, it can take place without mutual consent in special circumstances. A spouse can file for divorce without the other’s consent by citing irreconcilable differences, abandonment, abuse, or any reason recognized by law.
The legal process for divorce without mutual consent is typically complicated. It will likely involve court hearings on issues related to child custody, property division, and spousal support.
Other Common Grounds for Divorce
Besides a long separation, other common causes of divorce can include:
- Infidelity or cheating in marriage
- Broken communication
- Financial disagreements
- Incompatibility or irreconcilable differences
- Lack of intimacy or affection
- Substance abuse or addiction
- Domestic violence or abuse
- Growing apart or drifting away from each other
- Religious and cultural differences
- Constant verbal and physical abuse
How a Family Lawyer Can Help You
If your spouse has been absent from marriage for one year or more, your case is eligible for automatic divorce. The help or legal counsel from the family lawyers at Simple Divorce can improve your chances of filing a divorce claim successfully even when your spouse is uncooperative. For more information on how we can help you, contact us at 14169017992 or info@simpledivorce.ca
