Separation and divorce are two significant concepts in family law, but they are often misunderstood to mean the same thing. So what is the difference between separation and divorce?
If you’re experiencing a breakdown in your relationship, it’s important to understand the difference between separation and divorce, and how each of these terms may relate to your situation.
What is Divorce?
A divorce refers to a legal declaration by the court that formally ends a marriage, allowing the spouses involved to get remarried. Canadian law provides three grounds for divorce:
- Adultery (better known as cheating)
- Abuse or cruelty
- Living separately for over a year.
To obtain a divorce on the grounds of adultery or abuse, evidence must be presented in court. You will also technically need proof to get a divorce if you have been living separately from your spouse for over a year, but this is easy to prove.
A key aspect of divorce is that even if one spouse does not consent, the other can apply for divorce.
What is Separation?
A separation occurs when spouses live separately without any intention of living together again.
Separation does not require any legal process, but some couples may choose to sign a separation agreement that outlines the terms of their separation, such as custody and support arrangements for any children they have.
Although a legal form or court order is not required, an objective observer must confirm that the couple is no longer living together. Separation is not limited to physical separation; spouses can still live in the same house or apartment and be considered separated.
However, separated couples cannot remarry without first getting a divorce. Several criteria must be met before the court can grant a divorce, including arrangements for child support, parenting time, and religious barriers to remarriage.
In essence, separation generally happens before a divorce – couples can be legally separated for an extended period of time, then get a divorce to make this separation final and permanent in the eyes of the law.
More Differences between Separation and Divorce
It is important to note that divorce applies only to legally married couples, while separation can apply to both married and common-law couples. If a couple is separating, it is advisable to work with a separation lawyer who can help with a separation agreement that addresses spousal support, child support, parenting time, and other issues. This agreement can be used to legally hold up any violations in court.
Separated couples cannot sell or mortgage a home owned together (often referred to as a matrimonial home) without the other spouse’s consent, unless the separation agreement allows it.
Here are some additional differences between separation and divorce as legislated by the government of British Columbia:
- Legal status: Divorce is a legal process that ends a marriage. Once a divorce is granted, the marriage is legally terminated. Separation, on the other hand, does not legally end a marriage. Couples who are separated remain legally married and can not remarry until they get a divorce.
- Grounds for separation and divorce: In British Columbia, spouses can apply for a divorce based on the grounds of adultery, physical or mental cruelty, or one year of separation. For separation, there are no specific grounds required. Spouses can choose to separate for any reason, or no reason at all.
- Timeframe: Divorce proceedings usually take longer than separation proceedings. In British Columbia, spouses must wait at least one year from the time they separate before applying for a divorce. The process can take several months or even years to complete, depending on the complexity of the case. Separation, on the other hand, can be initiated immediately and does not require a court order.
- Division of property: In a divorce, the court will divide the couple’s property and assets between them. In a separation, property and assets can be divided by mutual agreement between the spouses, but there is no legal requirement to do so.
- Child custody and support: In both divorce and separation cases, the court will make orders for child custody, access, and support. However, in a separation, the court’s orders are not final and can be changed at any time. In a divorce, the court’s orders are final and can only be changed under certain circumstances.
- Health and other benefits: In some cases, spouses may be entitled to certain benefits based on their marital status, such as health benefits or survivor’s benefits. These benefits may be affected by a divorce, but not by a separation.
- Religious and cultural considerations: Some religious and cultural communities may have specific rules and procedures for divorce or separation that differ from Canadian law. It is important for individuals to consult with their religious or cultural advisors to ensure that they understand the implications of their decisions.
Get in Touch with a Separation and Divorce Lawyer
If you need help coming to an agreement on your separation or divorce, or if you are in a contentious separation, you’re in the right place. The family lawyers at Dhanu Dhaliwal Law Group can help you reach an agreement, finalize a divorce, create a custody plan, and more. Contact us today by filling out the form on this page or by giving us a call at the number above.
