Separation & Divorce

From Clicklaw Wikibooks

A couple separates when one or both spouses decide that their relationship is over and then take steps to act on that decision. When an unmarried couple separates, their relationship is over. The relationship of married spouses, on the other hand, isn't legally over until they are divorced, one of them dies, or their marriage is annulled.

This chapter begins by taking a quick look at separation and divorce, and talks about a few urban myths about separation and divorceThe legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage," and "marriage, validity of.". The following sections look in more detail at the legal and practical aspects of separation and the emotional dimensions of separation. The do-it-yourself divorce process is reviewed in a fair amount of detail in the Divorce section at the end of this chapter.

Everything in this chapter applies just as much to same sex couples as it does to opposite-sex couples.

Introduction

The rules about separation and divorce are fairly straightforward, despite some common misunderstandings.

Separation simply means making the decision that a relationship has broken down. You don't have to move out to separate. You just have to tell your spouseUnder the ''Divorce Act'', either of two people who are married to one another, whether of the same or opposite genders. Under the ''Family Law Act'', married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years but have had a child together. See "marriage" and "marriage-like relationship." that things have come to an end and that you'd like to end the relationship, and then act on that decision.

Divorce is the legal termination of a married relationship. A divorce requires an orderA mandatory direction of the court, binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. See "appeal," "consent order," "decision" and "declaration." of the court ending the marriageA legal relationship between two persons, whether of the same or opposite genders, that is solemnized by a marriage commissioner or licenced religious official and gives rise to certain mutual rights, benefits and obligations. See also "conjugal rights," "consortium" and "marriage, validity of.". A couple who have been separated for a dozen years are still married, and they'll remain married until they get a court order for their divorce. Unmarried spouses do not need to get divorced; their relationships are over when they separate.

Separation

Separation is simple: the parties must simply start living "separate and apart" from one another, whether under the same roof or in separate homes. Contrary to popular opinion, you do not need to see a lawyerA person licensed to practice law in a particular jurisdiction. See "barrister and solicitor." or file some sort of court document to obtain a separationIn family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however it is possible to be separated but still live under the same roof. See "divorce, grounds of.". You just need to call it quits, tell the other spouse that it's over, and take whatever steps are necessary to put an end to the partnership qualities of your relationship.

For married couples, separation signals the breakdown of their relationship but does not releaseIn family law, a legal document in which a person gives up a right or a claim, or the entitlement to enforce a right or advance a claim; a waiver. Releases are usually signed following the settlement of a court proceeding or legal dispute. See "action" and "claim." them from the bonds of their marriage.

For unmarried couples, including unmarried couples who qualify as spouses under the Family Law Act, separation is all that's required to end the relationship.

The date a couple separates is very, very important, because the date of separation is a very important element in determining child supportMoney paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses., spousal supportMoney paid by one spouse to another spouse either as a contribution toward the spouse's living expenses or to compensate the spouse for the economic consequences of decisions made by the spouses during their relationship., and the division of propertySomething which can be owned. See "chattels" and "real property." and debtA sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed..

Annulment

If one or more of the requirements of a valid marriage are lacking, the marriage may be annulled or cancelled. To obtain an annulmentA declaration by a judge that a marriage is invalid. The effect of such a declaration is to cancel the marriage from the moment it took place, as if the marriage never occurred. See "ab initio," "declaration" and "marriage, validity of.", one of the parties must make an application for a declarationIn law, a pronouncement of the court about a fact or a state of affairs, such as a declaration that a marriage is void or that a person is the guardian of a child. Not to be confused with an order, which is a mandatory direction of the court requiring a party to do or not do something. See "order." that the marriage is void. A marriage may be annulled if:

  • a female spouse was under the age of 12 or a male spouse was under the age of 14 (the common lawThe legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts; the system of justice used in non-criminal cases in all provinces and territories except Quebec. ages of puberty),
  • one or both of the spouses did not consent to the marriage,
  • a male spouse is impotent or a female spouse is sterile going into the marriage,
  • the marriage cannot be consummated,
  • the marriage was a sham, or
  • one or both of the spouses agreed to marry as a result of fraud or misrepresentationActs or words tending or intended to give a misleading or false impression as to the true state of affairs. See "bad faith.".

You can find more information about void marriages, voidable marriages, and annulment in the chapter Family Relationships, in the section Marriage & Married Spouses.

Divorce

Divorce is the legal end of a valid marriage. To obtain a divorce, one spouse must sue the other in the Supreme Court, and in general at least one of the spouses must have been "ordinarily resident" in British Columbia for the preceding year. To qualify for a divorce order, a spouse must prove that the marital relationship has broken down for one of three reasons:

  1. separation for a period of not less than one year,
  2. adulteryA married person's voluntary sexual intercourse with a person other than their spouse; playing the field; fishing out of season. Proof of adultery is grounds for an immediate divorce, providing that the other spouse has not consented to or forgiven the adulterous act. See "collusion," "condonation," and "divorce, grounds of.", or
  3. mental or physical crueltyIn family law, the physical, verbal, emotional or mental abuse of one married spouse by the other. Proof of cruelty is grounds for an immediate divorce, providing that the other spouse has not forgiven the adulterous act. See "condonation" and "divorce, grounds of".

It is possible to oppose an application for a divorce order, although this rarely happens. In general, once one of the grounds for divorce has been established, the courts will allow the divorce applicationA request to the court that it make a specific order, usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief.", despite the objections of the other spouse.

For various reasons, getting divorced can sometimes be a low priority in some people's lives. Frankly, most people have better things to do with their time than filing the paperwork necessary to get divorced, especially if that's the only legal issue to deal with. With the passage of time, spouses can lose track of each other, and it sometimes happens when one spouse decides to move on the divorce issue the other spouse can't be found, and the divorce order gets made without the other spouse being told about it! If you're not sure if you're divorced, see How Do I Find Out if I'm Divorced? It's located in the section Marriage, Separation & Divorce in the How Do I? part of this resource.

A few surprisingly common misunderstandings

A lot of people seem to labour under certain misconceptions about what marriage, separation and divorce actually involve. Part of these misunderstandings, I'm sure, come from television and movies; others are urban myths that get spread over a few pints at the pub.

Separation and the "legal separation"

There is no such thing as a "legal separation" in British Columbia, nor is it possible to be "legally separated." Whether you're in an unmarried relationship or a formal marriage, you are separated the moment you decide that the relationship is over. That's it, there's no magic to it. When you or your partner announces that the relationship is over and there's no chance of getting back together, boom, you're separated.

To be crystal clear:

  • you do not need to "file for separation" to be separated (in fact, there's no such thing in British Columbia as "filing for separation," despite what you might see on the websites of the people who sell do-it-yourself legal kits),
  • there are no court documents or other papers you have to sign to be separated, and
  • you don't need to appear before a judgeA person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal., lawyer, shaman or anyone else to be separated.

To be separated, you just need to decide that your relationship is over and say so.

Separation and remarriage

The fact that a married couple are separated isn't enough to let either of the spouses remarry, however. You must be formally divorced by an order of the court in order to remarry. If you do remarry without being divorced from the first marriage, the new marriage will be invalid.

Separation and new spousal relationships

On the other hand, the fact that a married couple has separated won't prevent you from having new relationships, including a new relationship that would qualify as an unmarried spousal relationship. Technically, this is adultery, but no one is likely to care. The Separation section of this chapter has a lot of information about new relationships after separation.

Divorce and the "automatic divorce"

As far as divorce is concerned, a court must make an order for your divorce or you'll never be divorced. You can have been separated from your spouse for twenty years, but unless a court has actually made an order for your divorce, you'll still be married. It'd be nice (and cheaper) if the passage of time gave rise to an automatic divorce, but it doesn't work that way.

Divorce and separation agreements

It is not true that you need to have a separation agreementA contract intended to resolve all or some of the legal issues arising from the breakdown of a relationship and intended to guide the parties in their dealings with one another thereafter. A typical separation agreement is signed following a settlement reached through negotiations and deals with issues including guardianship, parenting arrangements, contact, support, the division of property and the division of debt. See "family law agreements." to get a divorce. Separation agreements are helpful to record a settlementA resolution of one or more issues in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the conclusion of trial. See "action," "consent order," "family law agreements" and "offer." of the issues arising when a couple separates, like the division of assets or the payment of support and so forth, but they're not a requirement of the divorce process. You especially don't need a separation agreement if the only issue is whether you'll get a divorce order or not.

Divorce after death

It is not true that you remain married if your spouse dies. Once that happens, your marriage is at an end. You do not need to obtain a divorce.

Divorce for want of sex

It is also not true that a lack of sex in your relationship automatically ends your marriage, allows the marriage to be declared void, or is otherwise a ground of divorce. Sex has very little to do with divorce, just as it often has little to do with marriage. A lack of sex may spell the end of a relationship and spur a couple's separation, but at law whether you and your spouse are having sex or not is irrelevant.

The one exception to this last rule has to do with the consummation of the marriage, and this exception doesn't mean what most people think it means. A marriage does not need to be consummated to be a valid, bindingIn law, a requirement or obligation to honour and abide by something, such as a contract or order of the court. A judge's order is "binding" in the sense that it must be obeyed or a certain punishment will be imposed. Also refers to the principle that a higher court's decision on a point of law must be adopted by a lower court. See "contempt of court" and "precedent." marriage. In order to escape a marriage on this ground, you or your partner must, I kid you not, have an "invincible repugnance" to the act of sexual intercourse or some physical condition that makes sex impossible.


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