In Canada, the process of divorce can be initiated by either spouse on the grounds of marriage breakdown, which can be established through separation, adultery, or cruelty. However, one question that often arises is whether divorce occurs automatically after a long period of separation. While there is no "automatic" divorce in Canada, a long period of separation can be grounds for divorce under certain circumstances. In this article, we'll explore the legal process and implications of automatic divorce after a long separation in Canada.
Understanding Separation as Grounds for Divorce
In Canada, separation is recognized as one of the grounds for divorce under the Divorce Act. Specifically, Section 8(2)(c) of the Act states that a court may grant a divorce if the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding and were living separate and apart at the commencement of the proceeding.
Length of Separation Required
To obtain a divorce based on separation, the spouses must have lived separate and apart for a continuous period of at least one year. This period of separation is intended to demonstrate that the marriage has irretrievably broken down and that there is no reasonable prospect of reconciliation between the spouses. It is important to note that the one-year period of separation must be continuous, meaning that any periods of reconciliation or cohabitation during that time may reset the clock and delay the divorce process.
Commencing Divorce Proceedings
While the one-year period of separation is a prerequisite for obtaining a divorce based on separation, it does not automatically result in a divorce. Instead, one of the spouses must initiate divorce proceedings by filing an application for divorce with the court. The application must include details about the grounds for divorce, including the date of separation and the duration of the separation period.
Once the application for divorce is filed, the other spouse (the respondent) has an opportunity to respond to the application and may contest the grounds for divorce or raise issues related to custody, support, or division of property. If the respondent does not contest the divorce and agrees to the terms outlined in the application, the divorce may proceed through an uncontested process, which typically requires less time and expense than a contested divorce.
Proof of Separation
In cases where the spouses have been separated for at least one year, the court may require proof of the separation period to grant the divorce. This proof may include documentation such as separation agreements, lease agreements showing separate residences, utility bills in separate names, or affidavits from witnesses attesting to the spouses' living arrangements during the separation period.
Implications of Divorce After Long Separation
Obtaining a divorce after a long period of separation can have significant legal and practical implications for both spouses. Some of the key implications include:
Legal termination of the marriage: Once the divorce is granted, the legal relationship of marriage between the spouses is officially terminated, and they are free to remarry if they choose.
Division of property: Divorce may trigger the division of marital assets and liabilities between the spouses, including property, pensions, savings, and debts. In Canada, the division of property is governed by provincial and territorial laws, which may vary depending on the jurisdiction.
Spousal support: Divorce may also result in the determination of spousal support obligations, whereby one spouse may be required to provide financial support to the other spouse following the dissolution of the marriage. The amount and duration of spousal support are determined based on various factors, including the spouses' respective incomes, earning capacities, and needs.
Child custody and support: Divorce may involve decisions regarding custody, access, and support for any children of the marriage. These decisions are made based on the best interests of the child, taking into account factors such as the child's age, preferences, and relationship with each parent.
Conclusion
In conclusion, while there is no "automatic" divorce after a long separation in Canada, a period of separation of at least one year is one of the grounds for divorce under the Divorce Act. To obtain a divorce based on separation, one of the spouses must initiate divorce proceedings by filing an application with the court, and the separation period must be proven to the court's satisfaction. Divorce after long separation can have significant legal and practical implications for both spouses, including the termination of the marriage, division of property, determination of spousal support and child custody arrangements.
