The difference between separation and divorce in Ontario

Anyone who is married or in a common law relationship and who wants to end that relationship, can separate from their spouse.  Not everyone who separates, however, needs to obtain a divorce.  A divorce is a court order that legally dissolves a marriage.  You only need a divorce if you are legally married and want to marry someone else.

Our Richmond Hill family law lawyers can help you sort through the difference between separation and divorce in Ontario and why it matters in your circumstances.

How a legal separation works

There is no paperwork to effect a separation from your spouse.  As long as one of you:

  • decides that you want the relationship to end, and
  • behaves in a way that demonstrates that you want the relationship to end

then you are separated.  Separation does not need to be a mutual decision.  One spouse can cause a separation without the consent of the other spouse.

If you were in a common law relationship, then a separation is all you need.  If you are legally married, then you likely want to obtain a divorce.

Who can obtain a divorce? 

While a divorce is not mandatory, most married couples choose to get divorced if their relationship ends.

In order to apply to the court in Ontario for a divorce order, you must:

  • be legally married
  • have lived in Ontario for at least one year
  • show the court that your marriage has broken down by demonstrating one of the three “grounds for divorce”
  • show the court that there is no reason why they should not grant your divorce.

The three grounds for divorce are:

  • you and your spouse have lived “separate and apart” for at least one year
  • your spouse has treated you cruelly (this can include either physical or mental abuse)
  • your spouse has committed adultery.

You only need to prove one of the three grounds for divorce.  By far the most common ground claimed in divorces in Ontario is the ground of living separate and apart because proving cruelty or adultery to a court’s satisfaction is significantly more difficult.

How to apply for a divorce

To apply for a divorce, you will need a copy of your marriage certificate.  One spouse can apply for a divorce on their own or both spouses can apply jointly, depending on the circumstances.

If you have children, you will need to demonstrate to the court that arrangements have been made for the care of the children.  If you already have an agreement with your spouse with respect to custody and child support and you have no other issues arising from your divorce (such as unresolved property division or spousal support issues) then you can apply for a simple divorce.

Contact our Richmond Hill Family Lawyers for Legal Advice

If you and your spouse have been unable to come to an agreement on child support or any other issue, you can file an application asking the court for a divorce and for whatever other relief you need at the same time.  Be aware, however, that the court will not grant your divorce until after the issues relating to the children have been determined.

Do you have more questions on the difference between separation and divorce in Ontario?  Our family law lawyers are here to answer them. Contact us today

Disclaimer: Please note the content in this article is intended to act as a general overview on a legal topic and does not constitute legal advice.