How Does Required Separation Before Divorce Work?

Getting a divorce can be a complicated process. Emotionally, disentangling yourself from someone who, at one point, you thought you would be spending the rest of your life with is difficult. Financially, dividing up assets can be contentious. And if children are involved, the financial and emotional stakes are that much higher.

Because of all this, Canada's Divorce Act doesn't let couples divorce immediately. Instead, they have to meet one of three criteria laid out in Section 8, proving the breakdown of their marriage, in order to obtain a divorce:

• One spouse committed adultery
• One spouse has been physically or mentally cruel towards the other
• The couple has been living separately for a minimum of one year

Most divorces are based on the third ground, separation, because it is the simplest requirement to prove. So how do you go about getting a divorce by separating?

It Won't Happen Automatically

No matter how long you have been living separately from your spouse, you will never be granted a divorce without going through the legal process for one. If you are planning to begin a separation leading to divorce, you will also need to go through the legal process of divorce at the end of it. Consulting with a divorce lawyer early on can help you avoid any missteps in this process.

You Can Begin The Process Immediately

Although you have to have been separated for a year before your divorce is granted, you can begin the process as soon as you separate from your spouse. Talking to a lawyer and beginning the application process at this point will make sure that you're on the right track and will be able to get your divorce as soon as your year of separation is completed.

It's Possible To Live Separately Under The Same Roof

The easiest way to show that you have been living separately is for one spouse to move out. However, that's not always a possibility. If you can't afford to move out or choose not to for other reasons, there are other ways to prove that you are no longer living as a couple. Separating your finances is one way; both spouses can also sign an agreement stating that they have been emotionally separated since a certain date. A lawyer will be able to make sure that you can provide any necessary proof of separation should a judge request it.

You Can Give Your Marriage A Second Chance

If, during your separation, you want to give your marriage another try, there's a provision for doing so without resetting the one-year clock. You and your spouse can get back together for up to 90 days total, in one or multiple periods of time, without it affecting the date that you will be eligible for divorce. However, if you live as a couple again for more than 90 days, your separation will be considered over, and you will need to begin again if you decide to divorce after all.