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 divorce. 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 spouse 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 order of the court ending the marriage. 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 lawyer or file some sort of court document to obtain a separation. 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 release 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 support, spousal support, and the division of property and debt.

Annulment

If one or more of the requirements of a valid marriage are lacking, the marriage may be annulled or cancelled. To obtain an annulment, one of the parties must make an application for a declaration 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 law 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 misrepresentation.

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. adultery, or
  3. mental or physical cruelty.

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 application, 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 judge, 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 agreement to get a divorce. Separation agreements are helpful to record a settlement 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, binding 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.


Resources and links

Legislation

Links


This information applies to British Columbia, Canada. Last reviewed for legal accuracy by Thomas Wallwork and Vanessa Van Sickle, May 9, 2017.


Creativecommonssmall.png JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.
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