Separating and Getting Divorced
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JP Boyd on Family Law is undergoing updates. Some information is out-of-date, especially information about Provincial Court (rules, forms, and procedures), parenting after separation and moving away after separation under the Divorce Act. Read more under:
Adults separate when they decide that their romantic relationship is over and then take steps to act on that decision. When people in an unmarried relationship separate, their relationship is over and there are no other steps that must be taken to legally end things. When people are married, on the other hand, their relationship isn't legally over until they are divorced, one of them dies, or their marriage is annulled... whichever comes first.
This chapter starts by taking a quick look at separation, annulment and divorce, and talks about a few urban myths about separation and divorce. The following sections look in more detail at the legal aspects of separation and divorce, the emotional dimensions of separation, and issues about privacy and good behaviour after separation. The do-it-yourself divorce process is reviewed in a fair amount of detail in the Divorce and the Law on Getting Divorced section at the end of this chapter.
All of the information in this chapter applies just as much to people in same-sex relationships as it does to people in opposite-sex relationships. There is no difference between how the law treats people in same- and opposite-sex relationships in Canada.
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 and then acting on that decision. You don't have to move out to separate. You just have to tell your spouse that things have come to an end, that you're ending the relationship, and then behave as if the relationship is over.
Divorce is the legal termination of a married relationship. A divorce is a court order, which means that to get divorced you have to start a court proceeding in which you sue your spouse for a divorce order. Married spouses who have been separated for a dozen years without getting divorced are still married, and they'll remain married until they get a court order for their divorce. (Unmarried spouses don't need to get divorced, no matter how long they've lived together; their relationships are over when they separate.)
Annulment is another way of ending a marriage. Technically speaking, it's not so much the ending of a marriage, but a declaration of a judge that there was something wrong with how the marriage was entered into that makes the marriage void. A marriage that is void never happened; there's no ending since the marriage wasn't properly started in the first place.
Separation is simple. All the people involved have to do is start living "separate and apart" from one another, whether under the same roof or in separate homes. While you don't always have to move into separate homes to separate, you do have to behave as if your relationship is over, and that means that you've: stopped going out together; stopped doing chores and household tasks for each other; stopped sleeping together; stopped eating together; stopped hanging out together; and, started untangling your finances and financial responsibilities.
Contrary to popular opinion, you don't need to see a lawyer or a judge, 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 start acting like it's over.
For married couples, separation signals the breakdown of their relationship but doesn't end their marriage. A divorce order under the Divorce Act is required to end their marriage.
For unmarried people, including unmarried people who qualify as "spouses" under the Family Law Act, separation is all that's required to end the relationship.
While separation itself is pretty simple, the date a family separates can be very, very important. The date of separation is a very important element in determining how much child support should be paid, how much spousal support should be paid, and how property and debt are divided, and in determining when claims for spousal support and the division of property and debt must be brought. Section 198 of the Family Law Act says this:
(2) A spouse may start a proceeding for an order under Part 5 [Property Division] to divide property or family debt, Part 6 [Pension Division] to divide a pension, or Part 7 [Child and Spousal Support] for spousal support, no later than 2 years after,
(a) in the case of spouses who were married, the date
(i) a judgment granting a divorce of the spouses is made, or
(ii) an order is made declaring the marriage of the spouses to be a nullity, or
(b) in the case of spouses who were living in a marriage-like relationship, the date the spouses separated.
(5) The running of the time limits set out in subsection (2) is suspended during any period in which persons are engaged in
(a) family dispute resolution with a family dispute resolution professional, or
(b) a prescribed process.
In other words, married people have two years to start a court proceeding for spousal support or the division of property and debt, beginning on the day they are divorced or their marriage is annulled. Unmarried people, on the other hand, have two years to start a court proceeding for spousal support or the division of property and debt, beginning on the day they separate. In both cases, this time limit can be extended when the people involved are trying to resolve their differences out of court.
If one or more of the requirements of a valid marriage are lacking, the marriage may be cancelled, or annulled. To obtain an annulment, one of the parties must apply to court 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.
Divorce is the legal end of a valid marriage. To obtain a divorce, one spouse has to sue the other for a divorce order in the Supreme Court, and, in general, at least one of the spouses must have been "habitually resident" in British Columbia for the preceding twelve months.
There is only one reason why the court will make a divorce order: it is satisfied that the marriage has broken down. Under section 8(2) of the Divorce Act, there are three reasons why a marriage may have broken down:
- the spouses have been separated for at least one year,
- a spouse has committed adultery, or
- one spouse has treated the other with such mental or physical cruelty that the spouses cannot continue to live together.
It is possible to oppose an application for a divorce order, although this rarely happens. In general, once the breakdown of the marriage has been established, the court will allow the divorce application, despite the objections of the other spouse.
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 and are perpetuated by the internet.
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 announce 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, a lawyer, a state official, or anyone else to be separated.
To be separated, you just need to decide that your relationship is over, say so, and then live your life like you are in fact separated.
Separation and remarriage
The fact that a married couple is 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 won't be valid and you might be looking at criminal charges for bigamy under section 290 of the Criminal Code!
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 new sexual relationships and new cohabiting relationships. Technically, this sort of thing — being in a sexual relationship with anyone other than your spouse — is adultery, but no one is likely to care. The Separation and the Law section in 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 be separated from your spouse for twenty years, but unless a court has actually made an order for your divorce, you're still married. It'd be nice, and a lot cheaper, if the passage of time made you automatically divorced, 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 legal issues arising when a family separates, like the division of property 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're married after your spouse dies. Once that happens, your marriage is at an end. You don't need to get a divorce 'cause you're already single again. Congratulations.
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 annulled, 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 separation, but at law, whether you and your spouse are having sex or not is irrelevant.
The one exception to this general rule has to do with the consummation of the marriage, and this exception doesn't mean what most people think it means. A marriage doesn't 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 either some sort of physical condition that makes sex impossible or an "invincible repugnance" to the act of sexual intercourse.
- BC Supreme Court website
- Families Change website from the Justice Education Society of BC and BC Ministry of Attorney General
- Divorce Fact Sheet website from the Department of Justice
- Support and Resources for Dealing with Separation and Divorce website from the BC Ministry of Attorney General
- Legal Services Society’s Family Law website's information page on Separation & Divorce
- Under the section "Going through separation" see "Proving you're separated if you and your spouse still live together"
- Separation and Separation Agreements from Dial-a-Law by the People's Law School
- Deciding Who Will Move Out When You Separate from Dial-a-Law by the People's Law School
- MyLaw BC Make a Separation Plan Pathway from Legal Aid BC
- Going Through Separation from Legal Aid BC
- "Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce" from Legal Aid BC
- "Separated with Children - Dealing with the Finances: Parent Workbook" from the Justice Education Society of BC
- "Coping with Separation Handbook" from Legal Aid BC
- "Separation Agreements: Your Rights and Options" from Legal Aid BC and West Coast LEAF
- Parent Guide to Separation and Divorce from the Justice Education Society of BC
- "Legal Health Checks: Breaking Up - Without Court" from the Canadian Bar Association
- "How to Separate" online course from the Justice Education Society of BC
- "Ending Relationships" video from John-Paul Boyd, QC
|This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 12 March 2020.|
|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.|