Can You Divorce Your Spouse Without Them Knowing?

Can I get a divorce without the consent of my spouse?

If one spouse wants to get a divorce but the other does not, this means that the marriage has broken down. In which case, the partner who wants to divorce may be able to get the divorce without the consent of the other. However, there are certain circumstances under which a person is able to obtain a divorce without the consent of the other partner.

If you want to get a divorce, but your partner does not consent, you are still able to get a divorce under certain circumstances. You would have to prove the breakdown of the marriage, such as proving adultery or physical or mental cruelty, or separation for atleast one year with no scope for reconciliation. If you proved this, they would be granted a divorce when the court is able to hear your application. 

Grounds for divorce and how that affects divorcing without consent

If your spouse does not consent to Divorce, you may nevertheless bring a divorce application. 

Under the Divorce Act, there is only one basic ground for divorce: the irreparable breakdown of a marriage. To apply for a divorce, you will need to show that your marriage has broken down in one of the following ways:

• You have been living separately for at least a year
• Your spouse has committed adultery 
• Your spouse has mentally or physically abused you.

What if you want a divorce but do not know where your spouse is?

If you are the one filing for the divorce, but you do not know the whereabouts of your partner, you are still able to obtain the divorce. However, you are first required to make every effort to find your partner. If you cannot locate your partner, then you are able to apply to a judge asking for an order for substituted service, which is a court order describing what you must do to ensure that your spouse is aware of the filing of the divorce. Before the judge will grant you a divorce, the judge must know that you have attempted everything possible to find your partner. If you have made every effort to find your partner, then the divorce is granted.

Serving divorce papers if you cannot locate your spouse or if your spouse is evading service 

If you cannot find the other party, or you know where they are but are unable to serve them for some reason, you can request a substitute service, which will allow you to serve the documents on a third party (for example, a relative the other party is staying with) who will be able to deliver them. You will have to fill out a Form 14B: Motion, and request an order for substituted service, under Rule 6(15).

Rule 6(15) sets out what you must show in order to have the court grant your request: You must show the steps that have been taken to locate the person you need to serve (for example, internet searches, email or phone record searches, phoning relatives and friends), and what steps have been taken to serve that person if you have been able to locate them. Then, you must explain what substitute method of service you are requesting, and why you know that this method of service will likely be successful in getting the documents to the other party.

What if I can’t serve papers because I cannot find my spouse?

The traditional method of initiating a divorce action requires your lawyer or a process server to serve your spouse with the divorce action at your spouse’s last known address, or in hand if your spouse can be located elsewhere.   

But, if after you’ve made diligent efforts to locate your spouse and can’t find him/her, you can ask the court for an Order of Notice by Publication.

This means that you must run a notice of your intent to divorce your spouse in a newspaper near the area of the spouse’s last known whereabouts. Generally, you’ll run this “legal advertisement” for about three weeks and your spouse will be given time to respond to the final notice.

If they don’t respond, you may proceed to finalize your divorce by default.

You can divorce your spouse even if you can’t find him/her and even without their participation in the divorce proceeding, so long as a Judge is satisfied that your spouse had notice of the divorce proceeding.  When your spouse is M.I.A., notice by publication may be your best option.

When should I start trying to find my spouse – before or after I file my case?

There is no specific timeline for this. It is best practice to start your search beforehand, such that once your Application is ready, it can be served immediately on your spouse, in turn saving you time and expediating your matter to the courts. 

Do you need your spouse’s permission to get divorced?

Under section 8(2) of the Divorce Act, there are three grounds for divorce:

1. Living separate and apart for at least one year;
2. Cruelty, and;
3. Adultery.

While any one of these grounds will entitle a spouse to a divorce, living separate and apart is for one year is the most common. Once one of these events has occurred, either spouse may apply for a divorce. If you are eligible for a divorce, there are three types in Canada:

1. The first, and most uncommon option is a joint divorce, where one spouse files the Application for divorce with the other spouse.
2. The second type is an uncontested divorce. This is where one spouse files the Application for divorce, and the other spouse does not respond to it in court within the 30-day time limit. When the time limit expires, the Applicant can ask the court to grant the divorce order on the basis that the other spouse had the opportunity to oppose it and has not. The court is then allowed to assume that the spouse either agrees with the divorce or at least does not care about it.
3. The final type of divorce is a contested divorce. This is where one spouse applies for a divorce and the other spouse does not consent to the terms of the divorce, such as property division or spousal support. It can also occur where the spouse denies that the couple is eligible for a divorce.

How can I divorce without my spouse knowing it?

The Court does not make it easy to divorce a spouse without their knowledge. One has a certain amount of time from the divorce filing in which to serve notice to the other spouse. If the other spouse refuses to sign those papers and/or fails to respond to the proceedings, it may be possible to obtain a default judgment soon after – undermining the refuser spouse’s rights in the proceedings, often referred to as nothing them in default. 

Can I be divorced without knowing it?

Your case can’t move forward until you give your partner the documents you had issued by the court. This is called serving your partner.

You have to give your partner a copy of your documents so they know that you’ve started a case against them. This gives them a chance to respond to what you’ve written and tell their side of the story.

You also have to give your partner the blank forms that the court clerk gave you to give them, and their Mandatory Information Program (MIP) notice.

Your partner fills out their forms in response to your documents. They will agree or disagree with the orders you’re asking for, give their version of the history of your relationship, and can make claims (or ask for things) of their own.

So the short answer is No. You will always be notified by service of any family court documents. 

How could I be divorced without knowing?

Under certain circumstances, one spouse can divorce their husband/wife without them knowing. If spouses are estranged, unaware of where each other live and one attempts to find the other’s address but is unsuccessful following a comprehensive search, they may be allowed to end their marriage without the other party’s knowing 

The courts will expect any applicant that requests a divorce without knowing their spouse’s whereabouts to have made every reasonable effort to locate this person.

Can you legally divorce someone without them knowing?

Provided someone has been unable to locate their spouse in spite of strenuous efforts to do so, they can indeed get a divorce without their husband/wife’s knowledge provided they’re relying on the grounds of adultery, cruelty, or separation for a period of one year or more. 

How to find out if you have been divorced?

To find out if you’re legally divorced, you need an actual divorce order from the court. This can be more difficult than it sounds because your spouse could divorce you without your knowledge. 

If you know where your spouse currently resides, then you can search the records in the courthouse within that jurisdiction. But if you don’t know where your spouse lives, that complicates the matter.

Regardless of how or if you were notified of the pending divorce, you can still challenge it in court once the divorce is finalized. When a divorce order is entered without your knowledge, it’s called a default judgment.

You can challenge it by providing evidence and showing a valid reason as to why you didn’t respond while the divorce was still pending.

For divorce records from 1979 to the Present, you must go to the local Courthouse of the Superior Court of Justice where the divorce was filed. The divorce files are only available through that Courthouse. In Toronto, you would contact the Family Law Office on University Avenue.

You can only obtain a Divorce Certificate if you have your divorce judgment. Requests can be made in person or in writing. A copy of your divorce judgment and a self-addressed, stamped return envelope should be enclosed if you are requesting by mail. For more information, please visit the Ministry of Attorney General website.

If you do not have a copy of your divorce judgment you need should be to call the Divorce Registry in Ottawa to obtain a file number, once you have a file number, you can visit or write to the Superior Court of Justice.

Can you force someone to divorce you?

That would not be necessary. Even if your spouse does not agree to divorce you, you have the option of a contested divorce. You may apply for a divorce even when the other spouse does not agree with your claims.