Do we have to be separated for 1 year before filing for divorce?

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Do we have to be separated for 1 year before filing for divorce? My ex husband and I are separated. We have a separation agreement signed and in place, and are able to file a joint application for divorce. However, he is leaving the country for approximately a year, slightly more than 2 months before we hit the year-long separation milestone. Is there a way that we can get all the necessary paper work and signatures on file early so that the divorce order can be granted in a timely manner even after he's left?

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Andrew J. Kania, LL.B., LL.M.

9 years ago

Based on the facts that you have provided you should commence the divorce Application now, and not on a joint basis, and simply then serve him with the divorce Application before he leaves the country. He can then leave and, as long as he has not filed an Answer to the divorce Application, the divorce can be completed without any further need to serve him or have any involvement on his part. If a joint Application is issued, instead of an ordinary Application, then matters will be complicated as his involvement will be required in the future.

I do wish to emphasize that it is not necessary to wait to issue the divorce Application. It can be issued at any time after parties separate. The one year separation requirement only applies to the finalization of the divorce, not the issuance and service of the Application.

If you wish to speak with me you are welcome to call me at 877-668-9386 for a free consultation.

(The information provided above is general, not legal advice, as circumstances vary from case to case. As well, generally speaking, the above information relates to Ontario law. Thus, if you wish legal advice that you can rely upon for your specific case, or if you are making inquiries where Ontario law may not apply, please contact Douglas Briand for a free consultation).

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