Do You Have to Separate for a Year Before Divorce? Your Questions Answered
Jul 25, 2025
As family law lawyers in Toronto, one of the first questions we get from couples who are considering ending their marriage is: Do you have to separate for a year before divorce?
We understand that you may have many questions after the initial decision to divorce has been made. When you’re divorcing in Ontario, knowing your legal requirements is essential to planning your next steps with confidence and clarity.
In this blog post, we address this common question and related ones so you can make informed decisions. We also explain separation agreements, separation timelines, grounds for divorce in Canada, and when you should speak with family law lawyers for guidance.
Do You Have to Separate for a Year Before Divorce in Ontario?
The short answer is, in most cases, yes.
Under Canadian law, one of the main grounds for divorce is a separation of at least one year. The Divorce Act sets out three possible grounds for divorce:
- Living separately and apart for at least one year
- Adultery
- Cruelty (physical or mental)
The most common ground for divorce is separation. Choosing this means you must show you’ve been living apart for at least one year before the divorce is granted.
However, you can start the divorce application at any time after separation begins; you just can’t receive the divorce order until that year is complete.
What Counts as “Living Separate and Apart”?
One of the questions we get at Kelly Jordan Family Law is, “Do I have to move out when I’m separated?”
If you’re thinking this, know that many people assume they need to move out to be separated. That’s not necessarily true.
The changing economic situation and a lack of affordable housing are potential reasons why you may decide to live under the same roof while separated.
You can be “separated” while still living under the same roof if:
- You are no longer acting as a couple or a family
- You sleep in separate rooms
- You have no sexual relationship
- You don’t share meals, chores, or social activities as partners
What courts are looking for is your intent and behaviour, not just physical location. This flexibility helps people who cannot afford two households immediately.
Do You Need a Legal Separation Agreement?
A legal separation agreement is not required to be legally separated. Separation itself is simply when you and your spouse stop living as a couple.
However, a legal separation agreement is strongly recommended because it:
- Documents the date you separated
- Sets out agreed terms about parenting, child support, spousal support, and property division
- Can be enforced by a court if necessary
While you don’t need a lawyer to make one, working with family law lawyers ensures the agreement is clear, fair, and legally valid.
This written contract provides certainty and can help avoid disputes that could otherwise lead to lengthy and expensive court battles.
Related: How to Reach An Agreement When Separatelyd But Living Under The Same Roof
Can You Get Divorced Before a Year of Separation?
It is possible to get a divorce sooner than one year if you rely on:
- Adultery: You must prove your spouse committed adultery, which can be challenging and invasive.
- Cruelty: You must prove physical or mental cruelty, making continued cohabitation intolerable.
These grounds can be emotionally charged and difficult to prove. Many couples still choose the one-year separation even in difficult circumstances because it is simpler and less confrontational.
Can You Apply for Divorce Before the Year Is Up?
Yes. You can start your divorce application as soon as you separate, but the court will only grant the divorce order after you’ve been separated for one full year (unless you’re using adultery or cruelty grounds).
This approach can be useful because you can negotiate your legal separation agreement and submit the paperwork so you’re ready for the divorce to be finalized as soon as the year is over.
Can You Reconcile and Still Count the Separation Time?
The good news is that brief attempts at reconciliation don’t necessarily restart the one-year clock.
The Divorce Act allows couples to try to reconcile for up to 90 days total without losing their separation period. If you separate again within those 90 days, the original separation time can still count.
This means that if you and your spouse are considering saving your marriage, you can do so without legal penalties for trying.
Do You Have to Go to Court to Be Legally Separated?
No. You don’t need a judge’s order to be “legally separated.” Separation is a fact, not a legal status you have to apply for.
However, you will want to create a legal separation agreement or apply to court for an order if you can’t agree, to resolve issues such as:
- Parenting time and decision-making responsibility
- Child or spousal support
- Division of property
You may also want to consider divorce mediation to help resolve issues or family court.
Why Work with Family Law Lawyers?
Ending a marriage can be one of the most stressful periods in a person’s life. Family law lawyers help by:
- Explaining your rights and obligations
- Preparing clear, enforceable separation agreements
- Guiding you through the divorce process
- Representing you in negotiations or court
Speaking with a family law lawyer early on can save you time, reduce your conflicts and protect your interests, especially when children or complex finances are involved.
Other Common Questions About Separation
What if my spouse doesn’t want to separate?
You can still separate without their agreement if you act as if the relationship is over.
Do we have to wait a year to deal with support or property division?
No. You can negotiate and sign a separation agreement anytime.
Do I need a lawyer to get divorced?
No, but it’s highly recommended, especially if there are disagreements or children involved.
Separating And Divorcing: Getting Support From The Best Family Law Lawyers in Toronto
Do you have to separate for a year before divorce? For most Ontario divorces, yes, a one-year separation is required unless adultery or cruelty can be proven.
However, separation itself does not require court orders or moving out.
Creating a clear legal separation agreement with the help of experienced family law lawyers, like our team at Kelly Jordan Family Law, is the best way to protect your rights and plan for the future.
If you’re thinking about separating or starting the divorce process, family law lawyer Kelly D Jordan can provide you with the legal guidance and support you need.
If you need legal advice regarding separation or divorce, contact us online or call our Toronto offices at 416-849-5501 to schedule a consultation. Let us provide you with the guidance and representation you need.
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