“We’ve been separated for years, so aren’t we already divorced?”
It is a common question. When two people have built separate lives, it can feel as though the marriage has already ended. However, in Canada, separation and divorce are not the same thing.
Does Divorce Happen Automatically After a Long Separation?
No. There is no automatic divorce in Canada, regardless of how long spouses have been separated.
A couple may have lived apart for five, ten, or even twenty years, but they remain legally married until a court grants a divorce.
Under the Divorce Act, one year of separation is a common basis for obtaining a divorce. This does not mean that a divorce automatically takes effect after one year. It means that, once the legal requirements are met, either spouse may apply for a divorce.
Separation Is Not the Same as Divorce
Separation generally means that spouses are living separate and apart and no longer functioning as a married couple. Divorce is the legal process that formally ends the marriage.
Even if both spouses agree that their relationship is over, they may still need to:
- Resolve parenting and child support issues;
- Address spousal support;
- Divide property and debts;
- Obtain a divorce order; and
- Ensure the divorce is formally registered.
A separation agreement can resolve many issues, but it does not itself grant a divorce.
Does My Spouse Have to Agree?
No. One spouse can apply for a divorce without the other spouse’s agreement.
However, if there are unresolved issues involving parenting, support, or property, those matters may need to be addressed before the divorce can proceed smoothly.
Why Does a Long Separation Still Matter?
Remaining legally married can have important consequences, including:
Property and Financial Issues
Depending on the circumstances, limitation periods and deadlines may apply to property or support claims. A long separation does not necessarily mean that all potential claims have disappeared.
Estate Planning
If a person dies while still legally married, their spouse may continue to have legal rights, depending on the circumstances. Separation may also affect whether wills, beneficiary designations, and other estate-planning documents should be updated.
Support
Spousal support may remain an issue even after many years apart. Whether support is payable depends on the facts, including the parties’ financial circumstances and any existing agreement or court order.
Remarriage
A person cannot legally remarry until their previous marriage has been formally dissolved.
What If We Have Already Resolved Everything?
If the spouses have resolved their financial, parenting, and support issues, they may still need to complete the legal divorce process.
In some cases, the divorce application may be relatively straightforward. However, it is important to confirm that all necessary documents and agreements are in place before assuming the matter is fully resolved.
Frequently Asked Questions
No. You may describe yourself as separated, but you are not legally divorced until a court grants a divorce.
Yes. Your spouse does not have to agree to the divorce, although unresolved issues may complicate the process.
No. A separation agreement can address important issues arising from the breakdown of a relationship, but it does not legally end the marriage.
Not unless your divorce has been formally granted.
Key Takeaways
- Divorce does not happen automatically after a long separation.
- Separation and divorce are separate legal processes.
- A divorce application may be necessary even when both spouses agree the relationship is over.
- Property, support, estate planning, and remarriage can all be affected by remaining legally married.
- Legal advice can help ensure that the appropriate steps are taken.
If you have been separated for a long time and are unsure whether you are legally divorced or what steps remain, a family lawyer can review your circumstances and explain your options.
This article provides general information and is not legal advice. The outcome of any matter depends on its specific facts.
