Is There an 'Automatic Divorce' After a Long Separation in Canada?

No. There is no automatic divorce in Canada, however long you have been separated. A marriage ends only by death, by a divorce that has taken effect, or by a court declaring it null.

Separation still matters, though. It is the usual ground for divorce, and in BC it changes some estate rules even while you remain married. This guide explains what separation does and does not do.

The short answer: separation never turns into a divorce by itself

Under section 8(1) of the federal Divorce Act, a court may grant a divorce "on application by either or both spouses". Someone has to apply, and only a court can grant it. In BC, that court is the Supreme Court. There is no period of separation, whether 2 years, 10 years or 30, after which the law treats you as divorced.

A divorce takes effect on the 31st day after the judgment granting it (section 12(1)), and only then does it dissolve the marriage (section 14). Until that happens, you are still legally married, however long you have lived apart and however little contact you have.

A divorce ends a marriage, so this question only arises for married couples. If you lived together without marrying, there is no divorce to get; see our guide on what separation means for unmarried couples.

Where the myth comes from: the one-year separation ground

The only ground for divorce is breakdown of the marriage. The most common way to prove it is separation: under section 8(2)(a), the spouses must have lived separate and apart for at least one year immediately before the divorce is decided, and must have been living apart when the case started.

That one-year period is a condition you must meet when you apply, not a timer that ends the marriage. Two related rules in section 8(3) help long-separated spouses:

• Only one of you needs to have intended to separate. Spouses are treated as living separate and apart for any period during which they lived apart and either of them intended to live separate and apart.
• Short reconciliations do not reset the clock. Living together again for one or more periods totalling no more than 90 days, mainly to try to reconcile, does not interrupt the separation.

If you have been apart for years, the separation ground is usually the easy part. What remains is the application itself. Our guide on how to get a divorce in BC sets out the routes.

What staying married still affects

• You cannot remarry. Under the Civil Marriage Act, no one may marry again until every previous marriage has been dissolved by death or divorce or declared null by a court (section 2.3). The Province's marriage licence page says that if you were recently divorced, you must wait until the divorce order takes effect before buying a licence.
• Some deadlines have not started. For married spouses, the Family Law Act's two-year limit for claims to divide property or pensions, or for spousal support under that Act, runs from the date of the divorce judgment, not from separation (section 198(2)). Waiting rarely makes these claims simpler, as records get harder to find. See our guide to family law deadlines in BC.

Where separation does matter: wills and estates

There is one area where BC law treats a separated spouse differently from a married one, and it is the source of much confusion. Under section 2(2)(a) of the Wills, Estates and Succession Act (WESA), married spouses stop being spouses for the purposes of that Act when an event occurs that gives rise to an interest in family property under Part 5 of the Family Law Act. Under section 81(b) of the Family Law Act, that interest arises on separation.

In other words, for estate purposes, separation rather than divorce is generally what ends spouse status for married couples. Three details matter:

• Will gifts are revoked. If you separate after making your will, a gift to your spouse, and their appointment as executor or trustee, is revoked as if they had died before you, unless the will shows a contrary intention (WESA section 56).
• Brief reconciliations. Spouses are not treated as separated if, within a year of separating, they live together again mainly to reconcile, for one or more periods totalling at least 90 days (section 2(2.1)). A reconciliation after a gift has been revoked does not revive it (section 56(3)).
• Designations are separate. Section 56 deals with wills. Beneficiary designations on RRSPs, TFSAs, pensions and life insurance follow their own rules and should be reviewed separately.

This applies only for WESA's purposes. It does not end the marriage, and it does not let you remarry. Our checklist on updating your will and beneficiaries after separation covers what to change.

How to finally get the divorce after a long separation

• If you both agree. You can apply jointly and ask for the order on paper, without a court appearance. Our guide to online divorce in BC explains the Province's Online Divorce Assistant, e-filing and desk orders.
• If you have lost touch. You can apply on your own and serve your spouse. If they cannot be found after a diligent search, the court can permit another method of service. See divorce when your spouse won't sign or can't be found.
• If one of you lives elsewhere. A BC court can hear the divorce if either of you has been habitually resident in BC for at least a year before the case starts (Divorce Act section 3(1)).
• If you have children. The judge must be satisfied that reasonable arrangements have been made for the support of any children of the marriage (section 11(1)(b)).

Once the divorce takes effect, you can ask the registry for proof. Our article on the certificate of divorce in BC explains how.

Separated for years? Make the divorce official

Our family lawyers can confirm whether you can apply now, prepare a joint or sole divorce application, and point out any property, support or estate issues to deal with before the divorce is granted.

Call 604-259-2844 or send us a message to arrange a consultation at our Vancouver office.