Separation & Divorce: What's the Difference?

March 20, 2019

There are a couple of important distinctions between a separation and a divorce, and knowing the differences will help you immensely in the process. You don’t need to apply to a court to make a separation legal in Canada. It’s an event that happens when a relationship ends and by the choice of one of the two spouses. If you’re married or living as un-married spouses (the new term for “common-law” in British Columbia), you’re separated when one spouse tells the other spouse that they want to separate and you start living separately.

You don’t have to live in separate homes either to be considered separated. You can still continue to live in the same house, but you are generally considered separated if you sleep separately, don’t usually share meals and chores, aren’t physically intimate, and mostly socialize separately.

Issues around the separation, such as dividing property and debts, spousal support, child support, and parenting arrangements, are resolved between you and your former spouse in one of three ways – through the courts, by arbitration, or by negotiation (on your own or with the help of lawyers or mediators).

If you weren’t married to your spouse, you do not need to get a divorce. If you are married, you will remain married until you get a divorce. If you and your former spouse sign a separation agreement, it does not end your marriage: it simply sets out your rights and responsibilities to one another and to your children, if you have any, after the separation.

To get a divorce, you must go through a legal process with the courts and obtain a court order that says you are no longer married. This is most often done without needing to appear in front of a judge. You, or a lawyer on your behalf, file certain documents that the court needs, a judge reviews the paperwork, approves it, and issues a divorce order. Thirty-one days after the judge signs the divorce order, your divorce becomes final and you are officially no longer married. You can get a divorce certificate that is proof you are divorced and this allows you to get married again if you want to.

You don’t need your spouse’s permission to apply for a divorce, but, unless you are applying for the divorce on the grounds of adultery or cruelty, you must be separated for at least a year before you can ask the court for a final divorce order. If you have children, before the court will allow spouses to get divorced, a judge must be satisfied that the children are adequately cared for by the parents, meaning that there is a parenting schedule and child support in place.