Separation and divorce are two major pillars and highly practiced areas in family law. While they may relate to similar issues, they are commonly regarded as the same thing. On the contrary, separation and divorce have two very different meanings, both of which are important. For couples who are facing a breakdown of their relationship, it is good to know the difference between a divorce and separation. In addition, knowing how they differentiate, and how each of them applies to your situation is also helpful.
What is a divorce?
A divorce is a legal declaration made by the court that formally ends a marriage. In short, it means that the spouses involved are no longer married and they are legally able to get remarried.
Spouses who are separated, but not legally divorced can not remarry. However, it is not uncommon for separated couples to choose not to get divorced because they do not plan on getting remarried in the future.
In Canada, spouses are eligible for a divorce after one of the following three occurrences take place:
- Spouses have lived separately for more than one year
Once the court has established that one of these three events has occurred, you are then able to get a divorce. Even if the other spouse does not consent, you are still able to get a divorce. An application for divorce can be made by either spouse without the other’s consent. Typically, most spouses are divorced after living separately for more than one year. If you are trying to get a divorce on the terms of adultery or abuse, you will need to provide proof to the court. These claims can become messy.
Before the court can grant a divorce, the following must also be satisfied:
- Arrangements have been made for the children of the marriage, including parenting time and child support.
- The parties have removed any religious barriers to remarriage over which they have control.
- At least one of the spouses has lived in the Court’s jurisdiction for at least one year
- The partners have not engaged in connivance or condonation concerning the Divorce
If you are in a common-law relationship, you do not need to get a divorce. Divorce only applies to legally married spouses. If you are not legally married, you can not get a divorce.
What is separation?
A separation is when spouses live separately with no prospect of living together again. It does not require a legal form or court order. What is required is an objective observer who can testify that both spouses are no longer living together and are in fact living separate lives.
This does not necessarily mean that both spouses need to physically be apart. You can still live in the same house as your partner and still be separated. This usually occurs if one or both spouses cannot afford to move out on their own. Likewise, spouses can live separately and still be considered together.
Choosing to separate from your partner does not have to be a mutual decision. If one spouse announces that the relationship is over and a clear separation has happened, the parties involved are separated. Regardless of whether the other spouse wants the divorce or not.
To assess if a couple is truly separate, the following factors are analyzed:
- Whether the spouses occupy separate bedrooms
- Whether the spouses have continued sexual relations
- Whether the spouses present themselves as a couple to their community
- The quality of communication between the spouses
- Whether the spouses eat meals together as a family
- Whether the spouses participate in the same social activities
- Arrangements made regarding any shared expenses.
The key differences between a divorce and a separation
As we have already mentioned, divorce only applies to married spouses who want to completely dissolve their marriage. If you are not legally married and you are in a common-law relationship, you would not need a divorce, you would need a separation. Both married and non-married spouses can legally separate.
When you choose to separate, it is best to work with a separation lawyer who can help settle your affairs with a separation agreement or court order. A separation agreement will allow you to make claims for spousal support, child support, parenting time, and so on. It is in your best interest to create a separation agreement so that if there is ever a violation of the agreement, it will legally hold up in court.
If you are legally married, you can choose to separate but not divorce your partner. It is also important to note that separated but not legally divorced couples can not sell or mortgage a matrimonial home without the other spouse’s consent unless the separation agreement allows it.
Getting a divorce or separation? We’re here to help
To learn more about how to properly deal with the breakdown of your relationship, contact Galbraith Family Law. If you require a separation agreement, we can pair you up with one of our skilled separation lawyers to walk you through the separation process. If you are getting a divorce, we can match you with an experienced divorce lawyer based on your personal situation and the legal skills you require.
Our team of divorce and separation law specialists are here for you each step of the way. From planning your next steps to helping you understand your rights, to signing those final documents, we can help you easily navigate the separation and divorce process.
To get started, you can create a free separation plan on our website, or you can book a consultation with one of our professional family lawyers. To schedule a consultation, give us a call at one of our five locations across Ontario. For our Toronto offices call 647-370-8965, for our Newmarket office call 289-210-4692 or you can reach us at our Barrie office at 705-230-2734. Whenever you are ready, we are here for you.