Some clients who I meet with think that once one of the parties seeks legal representation, or commences a court proceeding, that their marriage is legally over. While parties who have separated retain legal representation to assist them with respect to their rights and obligations arising from the separation, this does not mean that the parties’ marriage is legally over.
So when is a marriage legally over then? The short answer is that a marriage is legally over once a Divorce Order has been obtained, and the time for an appeal of the Divorce Order, being thirty days, has expired without either party appealing the Order. Until that date, a married couple, no matter how long they have been separated, are still considered to be legally married. Keep in mind, this also means that until a Divorce Order is issued, neither party may legally re-marry.
Obtaining a final Divorce Order can often take a long time from the date of separation as it is often the last step in the process. And this is where much confusion still exists. Many separated spouses spend months trying to reach acceptable terms in a Separation Agreement, which is really at the heart of the divorce. The Separation Agreement details all the practical things that have to be settled, such as division of property, equalization payments, child support and spousal support, if applicable. Many individuals attempt to work towards a resolution of all issues related to their marriage prior to filing an Application for Divorce. This not only allows for a sense of finality, but it helps to ensure that once the parties are officially divorced, they have already obtained a resolution, either by way of Separation Agreement or Court Order regarding the major rights and obligations arising from the separation. Other parties, however, choose to move forward with first obtaining a Divorce Order, and then resolving all of the other issues. This is fine so long as there are no children, or if there are children, that the parties have already resolved the issue of the financial care for the children.
There is also the added layer that in order to obtain the Divorce Order, it must be proven that you and your spouse have been living separate and apart for a period of not less than 1 year, that adultery was the cause of the marriage breakdown, or that physical or mental cruelty was the cause of the marriage breakdown. The latter two grounds for divorce are not commonly claimed in Canada, and the truth is that adultery and cruelty can be very difficult to prove.
Simply being separated from your spouse, whether or not you continue to live in the same residence as that person, is not enough for the marriage to be considered legally over. Of course, the sooner that you begin moving forward to resolving all legal issues arising from the separation, the sooner the Divorce Order can be obtained, and the sooner that the marriage will be considered to be legally over.