If you are considering ending your marriage in Ontario, you may have heard the term “no-fault divorce.” In practical terms, a no-fault divorce allows a spouse to obtain a divorce without proving that the other spouse was responsible for the breakdown of the marriage.
For most spouses, the no-fault route is based on living separate and apart for at least one year. The focus is on the fact that the marriage has broken down, rather than on who caused the relationship to end.
In Ontario, the most common no-fault divorce is based on one year of separation. You do not have to prove adultery, cruelty or other misconduct. Once the one-year separation requirement is met, either spouse can ask the court for a divorce, even if the other spouse does not want the marriage to end.
A No-Fault Divorce Is Based on Marriage Breakdown, Not Blame
Under the federal Divorce Act, the legal ground for divorce is the breakdown of the marriage. Marriage breakdown can be established in different ways, including by showing that the spouses have lived separate and apart for at least one year.
This one-year separation route is commonly described as “no-fault” because the Court is not concerned with which spouse caused the separation, or the circumstances that led up to the breakdown of the marriage. The spouse who decided to end the relationship can simply rely upon the one-year separation period to obtain a divorce.
For a broader overview of the divorce requirements and your options in Ontario, click here.
Sources: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 8.
Adultery and Cruelty Are Different Grounds for Proving Marriage Breakdown
A one-year separation is not the only way to establish marriage breakdown. The Divorce Act also recognizes adultery and physical or mental cruelty as grounds for divorce.
These grounds are different from the no-fault separation route because they require proof of conduct by the other spouse. By contrast, a spouse relying on one year of separation does not need to prove wrongdoing or explain the reasons why the marriage ended.
For this reason, many divorces proceed upon the basis of separation even where the relationship ended due to difficult circumstances.
Sources: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 8(2).
Only One Spouse Needs to Intend for the Separation to Continue
The spouses do not both have to agree that the marriage should end before the separation period can begin.
For the purpose of the Divorce Act, spouses are considered to be living separate and apart where they are living apart and either spouse has the intention to live separate and apart from the other. This means that one spouse can decide that the marital relationship has ended even if the other spouse hopes to reconcile.
A short attempt at reconciliation does not necessarily restart the one-year clock. Periods of resumed cohabitation totalling no more than 90 days, where reconciliation is the primary purpose, do not by themselves interrupt the separation period for the purpose of a Divorce. It is a different set of rules for the Division of Property.
For more information about when the one-year separation period in Ontario begins, click here.
Sources: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 8(3).
You Can Start the Divorce Process Before the One-Year Separation Period Ends
A spouse does not necessarily have to wait until the full year of separation has passed before starting the divorce proceeding.
An application based on separation may be issued after the separation begins. However, the Court cannot grant the divorce on this ground until the spouses have been separate and apart for at least one year.
Before starting a divorce proceeding in Ontario, at least one spouse must also have been habitually resident in Ontario for at least one year immediately before the proceeding is commenced.
Sources: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), ss. 3(1), 8(2)(a).
The Divorce Process Begins With an Application to the Superior Court of Justice
A divorce in Ontario is granted by the Superior Court of Justice or the Family Court of the Superior Court of Justice.
Where a spouse is asking only for a divorce, a Form 8A: Application (Divorce) may be used. A divorce case can be started by one spouse naming the other as the respondent, or by a joint application where both spouses consent.
If the divorce is uncontested, the process commonly continues through written materials rather than traditional court appearances. The applicant will need to file a Form 36: Affidavit for Divorce, proof of the marriage (i.e. a Marriage Certificate), and a proposed Form 25A: Divorce Order.
For a step-by-step overview of filing for an uncontested divorce in Ontario, click here.
Sources: Family Law Rules, O. Reg. 114/99, rr. 8, 36.
A No-Fault Divorce Does Not Automatically Resolve Support, Property or Parenting Issues
Obtaining a divorce legally ends the marriage, but it does not necessarily resolve every issue arising from the separation.
Parenting arrangements, child support, spousal support and property division may still need to be resolved by agreement or Court order. These issues can exist separately from the request for a divorce.
Where there are children of the marriage, the Court must also be satisfied that reasonable arrangements have been made for their support before granting the divorce. If reasonable child support arrangements have not been made, the Court must stay the granting of the divorce until the issue is appropriately and adequately addressed.
Sources: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 11.
A Divorce Usually Takes Effect 31 Days After the Divorce Order
A Divorce Order does not ordinarily end the marriage on the same day that it is granted.
Subject to limited exceptions, the divorce takes effect on the 31st day after the judgment granting the divorce. Once the divorce takes effect, either former spouse may request a Certificate of Divorce as formal proof that the marriage has ended.
Until the divorce has taken effect, the spouses remain legally married and should not remarry.
Sources: Divorce Act, R.S.C. 1985, c. 3 (2nd Supp.), s. 12.
No-Fault Divorce Allows a Marriage to End Without Proving Misconduct
For most spouses in Ontario, the no-fault route provides a way to end a marriage without litigating who was responsible for the breakup.
The central requirement is usually one year of separation. Once that period has been completed and the other legal requirements are met, either spouse can seek a divorce based on marriage breakdown.
The divorce itself should also be distinguished from the other legal and financial consequences of separation. Obtaining legal advice by a qualified family lawyer can help identify which issues must be resolved before or alongside the divorce, and whether a simple or uncontested process is appropriate.
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Categories: Divorce, No-Fault Divorce, Separation, Family Law.