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Do I have to get a divorce?

Question
Do I have to get a divorce?
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CLEO (Community Legal Education Ontario / Éducation juridique communautaire Ontario)
Ministry of the Attorney General
Family Law Education for Women (FLEW)
Ministry of the Attorney General

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Do I have to get a divorce?
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Reviewed: 
July 31, 2017
Answer

No, you don't have to get a divorce if your marriage is over. Some married couples separate and never divorce. Others get a divorce only when they want to remarry.

Separating and getting a divorce are different things.

You can separate from your partner if you're married or in a common-law relationship. To legally separate, you don't have to go through a formal process or get a document. You only have to live "separate and apart" from your partner.

Only married partners can get a divorce. To legally divorce, you have to go through a formal process. You must apply for a divorce order from the court to legally end your marriage.

Matrimonial home

If you separate, each married partner has an equal right to stay in the matrimonial home and to claim a share in the value of the home. It doesn't matter who owns the home. You don't give up these rights if you decide to move out.

If you get divorced and you were not on title to the matrimonial home, you're no longer considered a married partner with an equal right to stay in the matrimonial home. But, this doesn't affect your right to claim a share in the value of the home.

New relationships

You can start a common-law relationship with someone else if you're only separated and not divorced. But you can't legally marry that person until you get a divorce from your first partner.

There can be problems if you don't divorce your first partner and are in a common-law relationship with someone else and you die.

This can happen when the beneficiary on your financial assets and investments, like your RRSP, is your "spouse". Legally, your spouse is your ex-partner and not your current common-law partner. So your ex-partner gets those assets. To avoid this, you need to update your beneficiary designations or get a divorce.

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