Separating and Getting Divorced

From a lawyer's point of view, marriage is the entry of two people into a new legal relationship which gives each of them certain rights and obligations, both during their marriage and in the event it comes to an end. Separation happens when one or both spouses decide that their married relationship is over. Divorce is the legal dissolution of a valid marriage by an order of the court; annulment is a declaration that a void or voidable marriage is invalid.

This chapter provides a brief overview of marriage, separation and divorce, all of which are discussed in greater detail in the following chapters, and looks at a few urban myths about marriage, annulment, separation and divorce. Everything in this section applies to same-sex couples just as it does to opposite-sex couples.

The do-it-yourself divorce process and the court forms used in that process are reviewed in a fair amount of detail in the last chapter of this section, Marriage & Divorce > Divorce.

I. Introduction

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

To be able to marry, the spouses must, among other things, be unmarried, sane and over a certain age. They must also be married by a person properly licenced to conduct marriages, either a civil marriage commissioner or an authorized religious official. The process for getting married in British Columbia is described in detail in the How do I ? section of this website, and the following chapter, Marriage & Divorce > Marriage, provides a lot more information about the law relating to marriage.

Separation simply means making the decision that the marriage 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. The ins and outs of separation are discussed in the Marriage & Divorce > Separation chapter, and some of the things that a couple thinking of separating might want to keep in mind are listed in the How do I ? section. The emotional dimensions of ending a relationship are discussed in the chapter Marriage & Divorce > Separating Emotionally.

Divorce is the legal termination of a marriage. A divorce requires an order of the court ending the marriage; a couple that have been separated for a dozen years are still married, and they'll remain married until they get a court order for their divorce. The rules about divorce and the process required to get a divorce order are discussed in the chapter Marriage & Divorce > Divorce.

A. Marriage Assuming that the parties have a valid marriage, they have entered into a new relationship with emotional, social and legal aspects. These different aspects of married life are often intertwined. For example, spouses are entitled to consort with one another and to enjoy the benefits of what are quaintly called conjugal rights; these are legally enforceable rights under the common law (well, the older common law) and, at the same time, they're also clearly emotional and social rights.

1. The Historical Meaning of Marriage The law about marriage has changed enormously over the last three centuries, and marriage once had a much more important legal significance than it does today. Before about 1890, a married couple were legally considered to be one person. A husband took ownership of all of his wife's property on marriage and could use his wife's assets as collateral for loans. His wife, one the other hand, lost the ability to hold a bank account in her own name, sell her property without her husband's consent, or start a law suit or run a business in her own name. Women who hadn't married, on the other hand, could own property in their own names, have bank accounts, sue and be sued, and run a business.

The institution of marriage was once of such social significance that people could be sued for attempting to interfere with a married couple's relationship. Until 1972, it was a civil offence to falsely boast that you were married to someone (called "jactitation of marriage") or to lure a spouse away from a married relationship (called "criminal conversation"), and a law suit could be brought against someone for loss of the benefits of marriage ("loss of consortium").

2. Marriage Today All of these old rules are now extinguished in British Columbia and married couples are no longer considered to be one person, with the husband having sovereign rights over his wife and her property. Since 1978, married women have had exactly the same property rights that unmarried women have, which are also happen to be the same property rights that their husbands have. A husband can no longer apply for credit in his wife's name or use her property as collateral for a loan without her express permission.

If there is a difference between married and being common-law these days, that is, a difference apart from the legal and religious dimensions, it's probably that marriage implies a greater sense of personal commitment to the relationship and a willingness to treat the relationship as a true partnership. It is just too easy to get out of a common-law relationship. Marriage means something more permanent and signals a personal dedication to nuturing and growing the relationship, and to sticking it out through the good times and the bad.

At law, the most significant difference between married and unmarried relationships lies in the consequences of the end of those relationships. There are fairly strict rules that limit the eligibility of common-law couples for spousal support, for example, and only married couples have the benefit of the rules about the division of property set out in the provincial Family Relations Act.

B. 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 declaration that the marriage is void. A marriage may be annulled if:

a female spouse was under the age of twelve or a male spouse was under the age of fourteen (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 consumated; the marriage was a sham; or, one or both of the spouses agreed to marry as a result of fraud or misrepresentation. More information about void marriages, voidable marriages and annullment is available in the chapter Marriage & Divorce > Marriage.

C. 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 and tell the other spouse that it's over.

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 common-law couples, separation is all that's required to end the relationship.

D. Divorce Divorce is the legal dissolution of a valid marriage. To obtain a divorce, one spouse must sue the other in the Supreme Court of British Columbia, and at least one of the spouses must have been "ordinarily resident" in British Columbia for the preceeding year. In order to qualify for a divorce order, the application must be based on one of three grounds:

separation for a period of not less than one year; adultery; or, 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.

Common-law couples don't need to get divorced to end their relationship with each other, no matter how long they've lived together.

Back to the top of this chapter.

II. 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 during a few pints at the pub.

A. Marriage and Getting Married It is not true that a common-law couple is automatically "married" once they've lived together for a certain amount of time. A common-law couple is never legally married unless they have actually had a marriage ceremony. There is no such thing as a "common-law marriage."

You are not legally married unless you have a marriage ceremony and the ceremony is conducted by someone authorized by the provincial government to perform marriages. Your car mechanic can marry you, if your car mechanic is a marriage commissioner, but your Wiccan high priestess cannot legally marry you unless she also happens to be a licenced marriage commissioner.

Las Vegas marriages and other sorts of quickie marriages are valid and binding marriages, so long as the marriages meet the criteria for valid marriages, discussed in the next chapter. If you want to undo the marriage, you'll have to get divorced just like every other valid marriage, and that will usually mean waiting until one year has passed since separation. For example, an alcohol-induced Las Vegas marriage was upheld in the very funny 2005 case of Davison v. Sweeney, simply because the spouses knew what they were doing when they married, despite the fact that they had never had sex and separated two days after the marriage, when their respective holidays ended.

B. 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 a common-law 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 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.

The fact that a couple are separated isn't enough to let a spouse 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.

On the other hand, the fact that you're separated won't stop you from having a new relationship, including a new relationship which would qualify as a common-law relationship. Technically, this is adultery, but no one except the Pope or your in-laws are likely to care.

C. Divorce and Getting Divorced 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.

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.

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.

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 "consumation" of the marriage, and this exception doesn't mean what most people think it means. A marriage does not need to be consumated 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 physicial condition which makes sex impossible.

Further Reading in this Chapter

• bulleted list of other pages in this chapter, linked

Page Resources, Documents and Links

Legislation

• bulleted list of linked legislation referred to in page

FLA, DA

Documents

• bulleted list

SSAG, CRA information bulletin

Links

• bulleted list of linked external websites referred to in page
• and relarted external resoruces

DoJ, FMP website, CRA website