What is the difference between a separation and divorce?

Your relationship with your spouse has broken down. You want to officially end your marriage. How do you do that? This may surprise you: in BC there is no such thing as “filing for separation.” Here is what you should know about separation and getting divorced.

 

What is separation?  

In BC, when two people who have been living together in a marriage or a marriage-like relationship (also known as a common-law relationship) decide not to live together anymore, they are separated. There is no such thing as being “legally separated” in BC and you do not need to file any paperwork to become separated. In other words, whether you are legally married or in a common-law relationship, you are “separated” in the eyes of the law as soon as you and your spouse begin living apart with the intention of separating. You don’t need your spouse’s permission to separate.

 

What is living separate and apart?

“Living apart” typically means that one of you moves out of your shared residence. Technically, though, it is possible to separate while still living under the same roof, where a clear intention of a permanent separation has been communicated and acted upon. Many spouses continue to live together after separation to save money, or to minimize disruption for the children. You can be separated while continuing to live under the same roof if you conduct yourself as a separated couple (e.g., sleep in separate bedrooms, stop sharing meals, and stop socializing together). To get divorced, you will need to swear that you have not “cohabited” for more than 90 days since your original date of separation and at least one year has passed.

 

What is divorce?

 

A divorce is the only way to legally end your marriage. You and your spouse can be separated for weeks, months or even years, but you are still married to each other until a divorce order is issued by the court. In BC, the Supreme Court issues orders for divorce.

 

What is the difference between separation and divorce?

 

There are some key differences between a separation and a divorce, including:

  • Paperwork must be filed to get a divorce, but no paperwork is needed make a separation official.
  • You and your spouse can get back together during the period of separation and simply resume life as a married couple. If you reconcile after getting divorced, your legal status as “married” will not be revived.
  • The date of separation can be the subject of dispute, whereas the divorce date is straightforward. A divorce is automatically final 31 days after the BC Supreme Court grants a divorce order if no appeal has been filed.
  • If you were legally married, you can’t get remarried to someone else until 31 days have passed after the divorce order was granted by the court.
  • If you were in a common-law relationship, you never need to file for a divorce and you are free to marry at any point.

 

Why is your separation date important?

 

The date of separation is the date a married or common-law relationship ends. In some situations, the end date is obvious, or the couple agree on the date of separation. In other situations, the date of separation is hotly disputed. Relationships don’t always end in a tidy way. If spouses can’t agree, the court will determine the date of separation. The date of separation must be determined because it has important legal consequences. For example:

 

BC courts will not grant you a divorce order until you have been separated for at least one year (unless you are applying for divorce on the grounds of adultery or cruelty). You can apply for the divorce before the year is up, but the court won’t grant the order until one year has passed since the date of separation.

The date of separation is also known as “the valuation date” and it is crucial to the question of how family property and debt are divided: 

  • The date of separation is the event that entitles a spouse to their share of family property.
  • The usual rule under BC family law is that all family property and all family debt have to be divided equally between the two of you, unless you have made a different agreement (a marriage contract, prenup, or separation agreement).
  • Family property is everything you or your spouse own on the date of separation, and family debt is everything you or your spouse owes on the date of separation.
  • The date of separation can have a dramatic impact on what is subject to division, and what is off-limits in your family law claim. A shift in the date of separation can be significant if the value of the property is different over time (think investments, stocks). Note, however, that when it comes valuing real property and interests in a family business, the key valuation date is not the date of separation but rather the date of the separation agreement or trial.

 

The date of separation triggers the time limit for making a claim to divide family property and debt and for spousal support for common-law spouses. Common-law spouses must start their family law claim within two years of the date of separation. Married spouses have two years from the date they are divorced or their marriage is annulled to start court proceedings for spousal support or division of property and debt.


Reach out for advice if you are going through separation or want a divorce

 

Prince George’s Dick Byl Law Corporation has guided clients through the challenging process of separation and divorce for nearly 40 years. Whether you are legally married or in a common-law relationship, it is so important to be prepared and understand your rights under family law. Prince George and Northern BC residents are encouraged to reach out book your appointment today. Our divorce lawyer will work relentlessly to ensure a fair outcome that protects you and your financial future.