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Article Summary: This article explains the key differences between separation and divorce in BC. Separation begins when you decide to live apart with the intention of ending your relationship, and during this time you address parenting arrangements, support, and property division through a Separation Agreement. Divorce is simply the court process that ends your legal marriage status after you've been separated for 12 months and resolved all legal matters. The article outlines what you need before getting a divorce, the different ways to create a Separation Agreement, and notes that common-law couples handle separation matters the same way but don't need to apply for divorce. It emphasizes that creating a Separation Agreement is the essential first step before moving forward with divorce.
What's the difference between separation and divorce?
SEPARATION VS. DIVORCE
When couples separate they frequently underestimate the process it entails, often because there are a lot of myths and misperceptions about divorce out there. Because the terms are often used interchangeably, people often assume divorce is the same as separation. This creates a lot of confusion. But in family law, separation and divorce are two different things, each with their own meanings.
What does separation mean?
As soon as you and your spouse decide to live separately and apart with the intention of ending your relationship, you are considered separated. In BC, while you can be “legally married” there is no “legal separation.” There is only such a thing as “legally divorced,” which we will describe below. If you still live together but have made clear intentions to separate, you are considered separated as long as you are living independently and no longer function as a couple.
The time period after making the intention to separate is called your separation. During this time you will address parenting arrangements, financial support, and property division. Once you’ve been separated for 12 months, you can get a divorce. It’s generally recommended that you sort out all the matters pertaining to your relationship and confirm the decisions in a Separation Agreement before you apply for a Divorce – particularly if you have children.
What does divorce mean?
While separation deals with all the practical aspects that tie you and your spouse together, divorce is meant for one thing: to end the legal status of your marriage. Of course, divorce only applies to couples who are legally married.
Think of the analogy of a long course of study. During your studies, you have to attend your classes, complete assignments, and write the exams. It’s only once you’ve completed all the work that you can apply to graduate.
It’s similar with divorce. The divorce itself does not divide property. It does not set support. It does not determine parenting. The bulk of that work is done in preparing your Separation Agreement. The divorce is simply the legal step that formally ends the marriage after everything else is resolved. This requires a series of paperwork that either you or a lawyer can file. In British Columbia the Supreme Court will grant a divorce judgement after all necessary legal issues have been resolved, particularly around parenting and support.
It can sound very official and intimidating, but in reality, it’s just a standard procedure that involves paperwork to officiate your decision to end the marriage. You don’t even have to attend in court.
What do you need before getting a divorce?
BEFORE YOU DIVORCE
As mentioned above, once separated, whether common-law or legally married, it’s important to address all legal issues around parenting, support, and property division. The safest and most recommended way to do this is by documenting everything into a Separation Agreement. There are a few ways to create one.
Also, it’s important to note that unless there are other legal grounds, you are eligible to apply for divorce after you’ve been separated for at least 12 months. So during this period, you can get all your affairs in order, address all legal matters between you and your spouse, and create your Separation Agreement.
If you have children, a judge will look to make sure you have resolved issues around parenting and child support before granting your divorce. Having your property division decisions documented in an agreement will also be important if you are looking to be approved for a new mortgage, remove your spouse’s name from an existing mortgage, transfer or sell a property, or divide pensions.
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Separation & common-law relationships
HOW IT DIFFERS
If you’re not married, you don’t need a divorce, but in BC, if you are in a common-law relationship, there are similar legal rights and responsibilities as legally married couples when it comes to matters pertaining to your separation. You still need to address the same matters as a couple who is legally married. The only difference is that you do not need to apply for divorce.
Keep in mind when it comes to common-law relationships, there is a two-year deadline post-separation for applying for spousal support and distribution of property that doesn’t exist for married couples. If you’re approaching this deadline and you haven’t created a separation agreement, be sure to consult with a lawyer.
Conclusion
THE NEXT STEPS
If you are separating, the best place to start is doing the foundational work first: gathering information, understanding how the law works in BC, exploring realistic options and scenarios, and creating a Separation Agreement. If you are looking to create an agreement on your own or through the hybrid legal approach, Divii can help.
