Automatic divorce refers to the process of terminating a marriage without a court hearing or the input of spouses.

If you’ve heard that divorce is automatic after a long separation period, you’ve likely been wrongly informed. There is no such thing in Canada.

Divorce is a legal process that always requires some court intervention. Therefore, in Canada, it is never considered automatic, even if you have been separated from your spouse or partner for decades.

You still need a judge to sign the divorce decree and, depending on the circumstances of your relationship with your ex, you may need assistance from a divorce lawyer.

What is Automatic Divorce After a Long Separation

How do you get a divorce in Ontario?

To obtain a divorce in Ontario, you must first meet the basic requirements and have reasonable grounds for divorce. First, you must be able to show the following:

  • You were legally married in Canada or any other country.
  • You intend to separate permanently from your spouse or have left your spouse already, and there is no possibility of getting back together.
  • You and/or your spouse have lived in Ontario for at least 12 months before submitting your application.

Next, you will need to show that your marriage is irretrievably broken. That means one of the following:

  • You and your spouse have lived apart for one year and consider your marriage over.
  • Your spouse has committed adultery and you have not forgiven your spouse (proof is required).
  • Your spouse has been physically or mentally cruel to you, making living together intolerable (proof is required).

Most people apply for divorce based on the first reason — bear in mind that you must have been separated for at least 12 months before doing so.

Provided that you meet all of the above criteria, you can get a divorce in Ontario by completing a divorce application and submitting it at an Ontario courthouse. There will be court fees to pay and you must follow the prescribed procedures — including informing your spouse of the intention to divorce.

A divorce lawyer can guide you through the paperwork and procedures and also assist with collaborating on or mediating a settlement of the key issues in the divorce.

No automatic divorce after a long separation

Remember, even if you have been separated for many years, you are still considered legally married unless you initiate successful divorce proceedings against your ex-spouse.

That means you are not free to re-marry and you still retain your legal rights and obligations as a married individual.

There is no automatic divorce after a long separation — a marriage must be nullified through the courts. Once that process has been completed, you’re free to legally marry again.

The simplest type of divorce in Ontario

Just because divorce is not automatic doesn’t mean that it will necessarily involve a long court battle.

In uncontested divorces, after the paperwork is submitted, divorce proceedings can be relatively quick and smooth if both partners agree on all of the main issues to be settled, i.e., child custody and parenting, child support, spousal support and property division.

The divorce is not considered “automatic” as it still requires a court procedure and a judge’s signature even if the divorcing parties do not need to appear in court in person.

In many cases, there are some disagreements and disputes about these key elements and lawyer collaboration, divorce mediation or even litigation may be required to settle these issues (as in contested divorces).

How long do divorces take in Ontario?

Uncontested divorces can be settled in as little as 4-6 months in Ontario after the initial 12-month separation period has expired.

The minimum it takes is 31 days after an order has been made for the divorce to take effect. If you can prove that adultery or cruelty has occurred and your divorce is based on one of these grounds, the courts can grant an immediate divorce — but remember that your spouse has the right to respond and defend against the accusations.

If there are contested elements of a divorce, it can take much longer than 4-6 months. The key issues must all be settled before a judge will sign the divorce decree and this can take many months or even years in some cases.

To avoid unnecessary disputes and delays, it may help to consult with a qualified lawyer early on in the divorce proceedings so that your legal rights and best interests can be protected.

What if you cannot locate your ex-spouse?

If you’re no longer in communication with your ex-spouse and cannot locate him/her, this could delay your divorce proceedings.

Part of the initial requirement after filing for divorce is to notify your spouse of the proceedings. You can make a court application for a “substituted service” if you cannot locate your spouse but this can become complicated.

You can aid your case with the following:

  • Documents that demonstrate how you have been searching for your spouse
  • Statements from witnesses
  • Any other evidence that your spouse has been absent for one year or more

If you can’t find your spouse, it’s best to discuss your situation with a divorce lawyer, who can advise how to proceed.

Can you get a divorce without mutual consent?

If there is mutual consent, the divorce proceedings are generally easier, quicker and less expensive. However, it is not necessary to agree to the divorce.

One party may dispute that the differences between them are “irreconcilable” or that abandonment, adultery or abuse has occurred.

In such cases, after being served with the divorce papers, the respondent is entitled to make a case for why the divorce should not proceed on the stated grounds and may hire legal assistance to do so.

Such proceedings can prolong matters as multiple court hearings may be required. It will be up to the judge to decide whether the divorce meets the requirements of Ontario law and can proceed.

If you have questions about divorce in Ontario, speak with an experienced divorce lawyer. Book a consultation with Amiri Family Law and we will advise you of your options.