If you’ve been separated from your spouse for many years, you might wonder if you’re already divorced by default. After all, life moves on, and when couples drift apart and start living separate lives, it’s easy to assume the relationship is “over” in every way. But in Canada, divorce does not happen automatically, no matter how long you’ve been apart. From a legal perspective, being separated and being divorced are two very different things. While separation can start the process, it doesn’t legally end the marriage. Only the court can do that.

The good news is that in most cases, the process can be straightforward, especially if you and your spouse are not contesting anything. If you’ve already been separated for over a year, you may be closer to the finish line than you think, although automatic divorce cases are not the norm.

Automatic Divorce After Long Separation in Canada

Living apart for a long time does not end your marriage by itself. In Canada, a marriage continues legally until a court grants a divorce order. There is no law that dissolves your marriage just because a certain number of years have passed. In other words, you could be separated for 5, 10, or 20+ years and still be legally married. You are not free to remarry until you get an official divorce judgment from the court.

In Canada, separation means living separate and apart (either physically or at least living “as if” you’re apart under the same roof). In contrast, divorce is the legal termination of the marriage. No matter how long you’ve been separated, you remain married in the eyes of the law until a divorce is granted by the court.

So if you’ve been apart for years and want to formally end the marriage, after a long separation in Canada, you must take action and file for a divorce judgment and then obtain a divorce certificate.

One-Year Separation: A No-Fault Ground for Divorce

The good news is that Canadian law makes it straightforward to get a divorce after a period of separation, and seeking legal assistance can help simplify this process. Under the federal Divorce Act, a one-year separation is accepted as proof that your marriage has broken down. This is the most common “no-fault” ground for divorce.

What this means: if you and your spouse have lived apart for at least one continuous year, you can file for a divorce based on that separation without needing to blame either party for the marriage ending. There’s no need to prove adultery or cruelty or any other fault if you use the one-year separation ground.

If you’ve already met the one-year separation requirement many times over, you do not have to wait any additional time. Instead, you can proceed with divorce proceedings as soon as you complete the paperwork, since the minimum 1-year period apart has long been satisfied. In fact, even couples who are newly separated can start the divorce process right away. The law allows you to file the papers as long as you’re living apart, but a judge won’t finalize the divorce order until a full year has elapsed.

Exceptions to One Year Separation Period

In other situations, such as adultery, abuse or domestic violence, you can apply for rightful divorce immediately, without waiting a year.

If your spouse has had sexual relations with someone else while still married to you, you won’t be able to get an automatic divorce, but you can file right away. However, you must be able to prove they committed adultery, such as through an admission or other evidence during legal proceedings. You cannot rely on this ground if you knowingly forgave or accepted the adultery afterward.

If your spouse causes emotional, financial, or physical harm that makes it intolerable to continue living together, you may apply for divorce on the grounds of cruelty. This could include threats of physical violence or harm, manipulative behaviour such as gaslighting, blaming you for everything, forcing you into debt, or sabotaging your financial independence, and more. But again, you’ll need to provide clear evidence, such as affidavits, witness statements, or documentation. The abuse must be more than occasional arguments. It must be serious and sustained, such as in cases of domestic violence.

That said, most people still choose to proceed under the one-year separation. It’s typically simpler, as there’s no need to prove fault like adultery or cruelty. It’s also less confrontational, since you avoid blame or evidentiary battles. You can meet this requirement by living apart, or even while still living under the same roof, as long as you no longer function as a couple.

Automatic Divorce After Death of a Spouse

If your spouse passes away, you are automatically no longer married. There’s no need for the surviving spouse to file for divorce. The marriage legally ends at the time of death, even if you had a long separation or had already started the divorce process. The legal relationship is considered dissolved as of the date of death, and the courts will not finalize or continue any pending divorce proceedings.

What Happens If You Stay Married But Separated?

Remaining married while living separately from your spouse has important legal and practical consequences in Canada. Many couples choose not to formally divorce, especially if they’ve been apart for many years without conflict. However, staying legally married can have unintended impacts on property rights, inheritance, taxes, and more. Below is a breakdown of what you need to consider if you’re separated but not legally divorced.

You’re Still Legally Married

No matter how long you’ve lived apart, you are still considered legally married until a divorce is granted by a court. This means you cannot legally remarry until you obtain a divorce judgment. A new marriage will not give you an automatic divorce. Your marital status remains “married” on legal documents such as tax returns, insurance applications, and immigration forms. A long separation period does not change this status.

Property Rights and Financial Entitlements

Even after a long separation, your spouse may still have legal rights to claim a share of your property. Under Alberta’s Family Property Act, either spouse can apply to divide matrimonial property, such as the family home, pensions, or savings, unless a formal settlement or court order has resolved it. Separation alone does not automatically finalize property and asset division. If no agreement is in place, property division could still be raised years later.

Wills, Estates, and Beneficiaries

Remaining married has implications for your estate and financial plans. In Alberta, marriage separation does not always revoke spousal rights in your will. Unless you change your will after separation, your estranged spouse could inherit part or all of your estate even after a long separation. Similarly, if you’ve named your spouse as a beneficiary on your RRSPs, pension plans, or life insurance policies, they may still be entitled to those benefits. Only a finalized divorce automatically severs many of these entitlements.

Spousal Support Obligations

Even without living together, separated spouses may still have legal obligations to one another. A spouse who was financially dependent may claim spousal support, especially after a long-term marriage. You don’t have to wait for divorce to request support; it can be arranged by agreement or through court application, and you can also ask for retroactive financial support, unless a court order or agreement explicitly waived the right to spousal support. Reach out to our spousal support lawyers, if you have questions about whether you qualify and how to apply.

Parenting and Child Support

If children are involved, separation doesn’t end your parenting responsibilities. Issues like child custody, parenting time, and child support continue regardless of whether you divorce. Alberta courts and government programs require that child support be addressed before granting a divorce. Still, the legal obligations toward your children exist as soon as you separate. You can and should arrange parenting and child support as soon as you separate, even if you’re not ready to file for divorce yet.

Tax and Government Benefit Impacts

Being separated can also affect your taxes and eligibility for government benefits. For tax purposes, Canada Revenue Agency recognizes “separated” as a distinct status, and this may impact your eligibility for credits such as the Canada Child Benefit (CCB) or GST/HST credit. Spousal amounts or deductions may no longer apply once you’re officially separated, even if not divorced. It’s important to report your change in marital status to CRA once you’ve been living apart for 90 consecutive days, as this is a significant life event.

If you’re not ready for divorce but want to protect yourself, consider preparing a separation agreement, updating your will and beneficiary designations, and getting legal counsel from a family lawyer to safeguard your rights.

Tips to Make the Divorce Process Easier

Divorce paperwork can feel overwhelming. However, there are plenty of resources and strategies to help streamline the process to put an end to your long separation, even without an automatic divorce. Here are some tips for a smoother experience.

Opt for an Uncontested Divorce if Possible

Uncontested divorces (where both parties agree on the divorce and all related issues) are usually faster, simpler, and cheaper than contested divorces. They are the closest you’ll come to an automatic divorce in Canada.

If you and your spouse have been separated for years, you might already be living completely separate lives. If there’s nothing to fight over (for example, your property has been divided and you don’t need spousal support, or you’ve informally agreed on those things), let the court know it’s uncontested. In an uncontested case, after you submit the paperwork, the process can be relatively quick and smooth because there are no disputes for a judge to resolve.

Neither of you will likely need to appear in court, and the judge can grant the divorce in chambers. To keep it uncontested, try to resolve any lingering issues through discussion or mediation before filing, so that the forms you submit reflect a full agreement. This avoids delays.

Consider a Joint Application

If your ex-spouse is on board with getting divorced now, even with an uncontested divorce, consider doing a joint divorce application. With a joint filing, you both sign all the documents as co-applicants, which means no one is a defendant and no one needs to be served. This can reduce formality and stress. It’s truly a collaborative approach to divorce that says, “We both agree it’s time to officially end this.” Many couples who have had a long separation in Canada find this appealing, even if you haven’t been in close contact. It saves the extra step of service and can sometimes be processed faster by the legal system.

Get Legal Advice

Every situation is unique, especially when it comes to ending a marriage after a long separation. Whether your divorce is straightforward or involves complex issues like property division, financial support, or parenting arrangements, the right approach can vary widely. That’s why it’s crucial to understand the type of divorce that best suits your situation, whether it’s a contested divorce or an uncontested application with mutual consent. Seeking advice from a family law firm like DLegal Law Office can make all the difference. Your family law firm will help you navigate the process, explain your options clearly, and ensure your divorce moves forward smoothly, even though automatic divorce after long separation in Canada isn’t possible.

Keep Communication Civil

If you’re in touch with your spouse, keeping things civil can greatly smooth the process. Let them know you plan to file for divorce to finalize things legally. Sometimes long-separated spouses are actually relieved to be on the same page and will cooperate. However, if communication is difficult or unsafe, and it will likely be a contested divorce, it might be best to handle things through family lawyers or third parties. Your safety and peace of mind come first.

Prepare Emotionally

Even after years of separation, formally ending a marriage can stir up emotions. It’s normal to feel nervous or sad or even unexpectedly emotional when you see the divorce papers and start the legal process. From a practical standpoint, being emotionally prepared will help you make clearer decisions and get through the paperwork with less stress. Know that you’re taking a positive step to legally finalize your independence and possibly move forward to new opportunities.

At DLegal Law Office, our separation and divorce lawyers will help you get the right support and guidance. If you’ve been putting off your divorce after a long separation, need a new or revised separation agreement, now is the time to take that next step and close the chapter for good, on your terms. Get in touch today!

The content of this article is intended to provide a general guide to the subject matter and should not be considered legal or other professional advice. To get detailed information regarding your specific circumstances, please discuss your situation with a lawyer or other professional. Refer to our Legal Notice  for more details.