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Automatic Divorce After Long Separation in Canada

Is Automatic Divorce After Long Separation in Canada Viable?

Separation can be a difficult and emotional process, especially when it comes to ending a marriage. In Canada, there is a provision for automatic divorce after a certain period of separation, which can make the process a little easier for couples who have been apart for a long time. If you’re facing a separation or divorce, it’s important to understand the laws and regulations surrounding automatic divorce in Canada, so you can make informed decisions about your future.

In this blog, we’ll explore the concept of automatic divorce after long separation in Canada and provide you with the information you need to make informed decisions about your relationship and your future. Whether you’re just starting to think about separation or you’re already in the process of ending your marriage, this guide will also help you understand whether your automatic divorce after long separation in Canada is viable. 

Are Separation and Divorce the Same Thing in Canada?

No, separation and divorce are not the same thing in Canada.

Separation refers to the point in time when a couple stops living together as a married couple. It is a legal status that can be established even if the couple is still legally married. In order to be considered separated in Canada, a couple must have been living separate and apart for at least one year, with no intention of resuming cohabitation.

Divorce, on the other hand, is a legal process that ends a marriage. You must formally file for divorce in court because it is the only legal method to end a marriage.  Either way, you get rid of a toxic relationship and start your life afresh. In order to obtain a divorce in Canada, one of the spouses must file a divorce application with the court and meet certain legal requirements. One of the legal requirements for divorce in Canada is that the couple must have been living separate and apart for at least one year.

Marriage Separation Law in Canada

Marriage separation is a difficult process for anyone to go through, regardless of the circumstances. In Canada, there are specific legal considerations that you should be aware of when it comes to separating from your spouse.

A separation agreement is a legal contract that outlines the terms of your separation, including how property and assets will be divided, custody and access arrangements for any children, and support payments. In Canada, separation agreements can be prepared by you and your spouse without the need for a lawyer, although it’s recommended that you seek legal advice to ensure that the agreement is fair and legally binding.

When it comes to child support and custody, if you have children with your spouse, you will need to make arrangements for child support and custody as part of your separation agreement. In Canada, child support is calculated based on the Federal Child Support Guidelines, which take into account the income of both parents and the number of children involved. The court will determine custody based on the best interests of the child, taking into account factors such as the child’s age, their relationship with each parent, and their needs and preferences.

When it comes to spousal support, if one spouse is financially dependent on the other, they may be entitled to spousal support as part of their separation agreement. The court will consider factors such as the length of the marriage, each spouse’s financial situation, and their ability to become self-sufficient when determining the amount and duration of spousal support.

Is Automatic Divorce After Long Separation in Canada Viable?

In Canada, there is nothing called automatic divorce. A long or short separation does not automatically lead to divorce. Your divorce will not show up until you are not filing for divorce with the court; only the official divorces are considered valid. 

But sometimes, in some rare cases, a lengthy separation leads to a divorce. 

Let’s know about it in detail.

One-Year-Long Separation

There is no specific time of separation after which your marriage will automatically end, but you can use the grounds of absence for a year to file for divorce with your spouse.

If you have been living separate and apart for less than one year, you may still be able to obtain a divorce, but you would need to provide additional evidence to the court to prove that your marriage has broken down. To the court, you must explain that you and your partner are staying apart for at least a year. When you and your spouse remarry after that separation of more than 90 days, the process gets discontinued.

Because of this, you and your spouse get another opportunity to decide to stop the divorce. However, you can file a divorce when your partner is completely absent from the relationship or separated for at least a year. 

Dead or Missing Partner

If your partner passes away, you can automatically get your divorce granted. You two are ultimately separated this way, so you can get your divorce granted now.

File for a legal divorce if your partner is absent or in the hospital because of a serious mental illness or physical injury. You can use it as grounds for your legitimate divorce. You don’t need to keep waiting for your partner until recovery, even though there is a chance that person will resume a normal life afterward.

Also, very long separations always lead to divorce. If your spouse is considered permanently absent or lost for at least seven years without any contact. Then, you two will be considered legally divorced.

Domestic Violence and Long Separation

Every marital complication begins with domestic violence. You and your spouse can live apart when there is any domestic abuse. In the long run, you can use the lengthy separation as a legitimate reason for your divorce. A family lawyer can help you to get a good amount of compensation from your partner.

In case of domestic abuse, you will get legal counsel from an experienced lawyer. You can also live apart if you want to claim that your partner has been doing wrong to you. Later, you can file a divorce in court.

Therefore, it is evident that there is no specific time that can turn a separation into a divorce. But if the reasons for separation call for a divorce, you can prove your claims for a valid legal divorce.

When Can the Judge Refuse a Divorce?

In the following circumstances, a court won’t grant your divorce. 

  • When your child is not getting the necessary financial support: Before concluding your divorce, you must convince the court that you ensured all the necessary arrangements for their upbringing and future.
  • When you claim that your relationship has ended because of your partner’s cruelty or adultery, the process will be paused for a while. They will need solid proof of that and consider the allegations. After that, the process will continue. 
  • Act of fraud is one of the least claimed reasons for rejecting your divorce. The court will dismiss your divorce process if the judge believes that you and your spouse are planning to divorce to gain some personal benefits. 

What are Your Rights if You are Separated or Divorced?

You will receive a good amount of financial support or property if you get separated from or divorce your spouse. A variety of factors will influence your legal options, which include your legal married life and children. 

Economic Support

The law can impose spousal support obligations on your spouse. Your spouse must pay it if that person is lawfully married to you, yet lived with someone else for at least three years without having children, or was legally married to another person. In this situation, if your kids stay with you, you will be eligible for child support.

Here, your spouse will be the “payor” is the one as he makes the payment, and you, along with your children, will be the ‘receiver’. The Family Responsibility Office (FRO) takes care of stuff like this.

If the payor lives in Canada, the US, or many other nations, the FRO will gather the entire support. However, the FRO may not be able to help you if the payor lives in a nation that has not signed a contract with the government. 

In this case, you must consult a lawyer or a professional law firm when you believe that you are entitled to spousal or child support.

Property Division

If you are legally married and booking for a divorce, one of you might have to pay the other an equalization payment. There are various guidelines for this calculation, which makes it a  bit challenging and needs additional help.

You do not get this privilege only because you were lawfully married. There are certain exceptions to the general rule that each of you must have assets under your name. You will learn about it better from an expert lawyer.

Any formal separation agreement you and your spouse signed in front of a witness will impact your support and property rights. Before signing any deal, you must check the laws and make sure you understand them properly.

How Long Does It Take to Get a Divorce in Canada?

When you encounter stuff like custody hearings and property division, a divorce procedure can take up to 4 to 6 months to finish. But, contested divorces that need courtroom involvement might take longer.

In Canada, you must wait at least a year after you two stay separate before filing for divorce. After receiving the order, the divorce must wait at least 31 days before it becomes effective. If the court is convinced that there are valid grounds and you are seeking a divorce for that, it will be granted right away.

Difference Between Automatic Divorce & Rightful Divorce

 

CriteriaAutomatic DivorceRightful Divorce
DefinitionA type of divorce that occurs without mutual agreement or the consent of one party.A type of divorce that occurs with mutual agreement or the consent of both parties.
Grounds for DivorceNo specific grounds are required, and the divorce is granted without any fault or blame assigned.Specific grounds must be met, such as adultery, cruelty, desertion, or irreconcilable differences.
Legal ProcessThe process is usually quick and straightforward, often relying on a unilateral decision by one party or a pre-agreed-upon contract.The process can be more complicated and may involve legal negotiations, settlements, or court proceedings.
Division of AssetsThe division of assets is determined by a prenuptial agreement or the default rules set out by the state or country.The division of assets is negotiated and determined based on factors such as each party’s contributions, income, and financial needs.
SatisfactionOne party may feel they were unfairly treated or not given an opportunity to express their feelings, leading to dissatisfaction or resentment.Both parties are more likely to feel heard and respected, leading to greater satisfaction and potentially better co-parenting outcomes.
Relationship OutcomeThe relationship between the parties may be irreparably damaged, leading to ongoing conflict and difficulties in co-parenting.The parties may have a better chance of maintaining a respectful relationship, which can be beneficial for co-parenting and future interactions.

 

Alternatives to Automatic Divorce After Long Separation in Canada

Automatic divorce after long separation is just one of several options available to couples seeking a divorce in Canada. While it may be a convenient and cost-effective solution for some, others may prefer to pursue a different route. Here are a few alternatives to consider:

  • Joint Application for Divorce: In a joint application for divorce, both spouses file a divorce application together, indicating that they have reached an agreement on all the terms of their divorce, including the division of property and custody of children. This option can be faster and less expensive than a contested divorce, but it still requires a court hearing.
  • Uncontested Divorce: An uncontested divorce is similar to a joint application for divorce, but it is completed entirely outside of court. The spouses reach an agreement on all terms of the divorce and submit it to a judge for approval. This option can be even faster and more cost-effective than a joint application for divorce, but it may not be appropriate for all couples.
  • Contested Divorce: In a contested divorce, one or both spouses disagree on the terms of the divorce and require a court hearing to resolve their differences. This option can be more time-consuming and expensive than the other alternatives, but it may be necessary in cases where the spouses are unable to reach an agreement on their own.

Each couple’s situation is unique, and the best option for one may not be the best option for another. It is important to carefully consider one’s individual circumstances and seek legal advice before making a decision. Couples may also consider alternative forms of dispute resolution, such as mediation or arbitration, to help them reach a mutually acceptable agreement without going to court.

To Wrap Up

So, you know what can or can’t make your relationship end with your spouse. As you know it, follow the best way to make the processing smoother. It will be best if you get along with an expert lawyer who can suggest the best way to make the divorce process faster and simpler.

FAQs : Automatic Divorce After Long Separation in Canada

What is automatic divorce in Canada?

Automatic divorce in Canada refers to the dissolution of a marriage without the need for a court appearance or application to the court. This is achieved when a couple has been separated for a minimum of one year and both parties agree to the divorce.

How long does a couple need to be separated to be eligible for automatic divorce?

A couple must be separated for a minimum of one year to be eligible for automatic divorce in Canada.

Is there a required minimum length of separation for automatic divorce in Canada?

Yes, the required minimum length of separation for automatic divorce in Canada is one year.

Is there a difference between legal and automatic divorce in Canada?

Yes, there is a difference between legal and automatic divorce in Canada. A legal divorce is obtained through the court and requires a hearing, whereas an automatic divorce can be obtained without a court appearance if the couple meets the eligibility criteria.

Can one spouse contest an automatic divorce in Canada?

No, both parties must agree to the automatic divorce for it to proceed. If one spouse does not agree to the divorce, a legal divorce will be required.

What happens to property and assets during an automatic divorce in Canada?

The division of property and assets during an automatic divorce in Canada will be governed by the laws of the province in which the couple resides. It is recommended that both parties obtain legal advice to ensure a fair division of assets.

Do I need a lawyer to obtain an automatic divorce in Canada?

While it is not necessary to have a lawyer to obtain an automatic divorce in Canada, it is recommended that both parties seek legal advice to ensure they understand their rights and obligations during the divorce process.

What is the process for obtaining an automatic divorce in Canada?

The process for obtaining an automatic divorce in Canada involves filing a divorce application with the court, completing and signing a separation agreement, and waiting for one year from the date of separation. If both parties agree to the divorce, it can proceed without a court appearance.

Are there any fees associated with automatic divorce in Canada?

Yes, there are fees associated with obtaining an automatic divorce in Canada, including filing fees and fees for obtaining copies of documents.

What is the impact of an automatic divorce on spousal support and child custody arrangements?

The impact of an automatic divorce on spousal support and child custody arrangements will be governed by the laws of the province in which the couple resides. It is recommended that both parties seek legal advice to ensure their rights and obligations are protected during the divorce process.

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