December 13, 2022 | Divorce

Divorce vs. Separation

Unfortunately, not all marriages work out as planned and oftentimes, for a multitude of reasons, life moving forward will be better to end your marriage. Regardless of the cause or whether it is amicable or not, there are several steps that need to be taken in order to end a marriage.

Divorce and separation are two terms that are sometimes used interchangeably, however, they have very different legal effects. Divorce is the only way to terminate a marriage whereas de facto separation is when two spouses stop living together, and legal separation is when you are liberated from the obligation to continue to live together by a court judgement. Also it is at this time that we will analyse your asset division and use that date as your date of separation.

In Canada, a married couple must divorce in order to dissolve their marriage. It can be granted on the terms that the spouses agreed upon or by a trial.

The three grounds for divorce are:

  1. Living apart for at least a year
  2. Adultery
  3. Physical or mental cruelty

A divorce can be rendered before a year has lapsed since separation when the grounds for divorce are adultery and cruelty. The reason that you do not have to wait one year for these two grounds of divorce is that the courts deem that if either of these issues were present during your marriage the chances of reconciliation are unlikely. Whereas if the grounds for divorce are separated for one year, the courts are of the opinion that this is not a rash decision that the parties would want to reverse.

Either spouse can allege one or more of these grounds for divorce. However, you cannot allege that you committed adultery or treated the other spouse with mental cruelty. Only your spouse can allege it against you. Otherwise, anyone would go cheat, file divorce with grounds of adultery to circumvent the one year waiting period before the divorce can be rendered. It is important to note that you do not need your spouse’s approval to file for divorce.

De facto separation can occur when spouses cease living together or if one of the two spouses leaves the family home. In order for an agreement to separate to be effective, both spouses need to comply willingly. Additionally, the spouses continue to be legally married and are therefore subject to certain rights and obligations that result from that marriage. If one spouse is unable to meet their own financial needs, they can apply to the courts to obtain spousal support from the other.

You can apply for legal separation, known as separation from bed and board. A legal separation does not dissolve the marriage, only a divorce ends the marriage. Therefore, they must respect their obligations of respect, fidelity, succour, and assistance. They must also respect other clauses that were included in their marriage contract.

Separation from bed and board means that the spouses no longer have to live together but remain married, decide on the effects of their separation, and receive a court judgement that outlines their rights and responsibilities.

The decision can also address the following:

  1. Child custody and financial support;
  2. Spousal support;
  3. Division of property.

There are a few reasons why couples may opt for legal separation. For example, if their situation does not yet meet any of the requirements for divorce but they would like to settle the consequences of the end of their relationship, a spouse will often ask for legal separation. It is also useful when divorce is against one of the spouses’ religious beliefs, but they still want to live separate lives. Also, it could be that one spouse is not ready to end the marriage yet and a legal separation is used as a compromise for the time being.

It is also important to note that if you are only legally separated, you cannot remarry. You can only do so 30 days after a divorce judgement is rendered.

Legal separation is not a requirement to apply for a divorce.

https://www.quebec.ca/en/family-and-support-for-individuals/separation-divorce/separation#:~:text=Unlike%20divorce%2C%20legal%20separation%20does,or%20only%20one%20of%20them

https://educaloi.qc.ca/en/capsules/the-three-legal-reasons-for-divorce/

https://educaloi.qc.ca/en/capsules/legal-separation/