When are you considered separated?
Separation occurs when at least one spouse indicates clearly that they want to end the relationship and begin living independently. Living independently can occur in the same home or a different residence.
Why is the separation date important?
For married couples and common law couples, the date of separation is very important. It not only signals the breakdown of the relationship, it is also a very important factor when determining child support, spousal support and the division of assets and debt.
Federal law (Divorce Act) and provincial law (Family Law Act) govern issues relating to separation and divorce.
Common Law Couples
What is a common law couple?
Common law couples are those who have lived together in a relationship for two or more years. They can be opposite-sex or same-sex, with or without children.
What does separation mean to a common law couple?
For common law couples, separation is the legal termination of the relationship. There are no legal steps, such as a divorce, that need to be taken after separation.
What are some issues that may arise when common law couples separate
After a common law couple has separated, issues such as division of property and debt, parenting arrangements, child support, and/or spousal support may arise. These issues can be resolved through negotiation of family law agreements such as separation agreements. Alternatively, you may need to resolve these issues or enforce your rights in court if an agreement cannot be reached between the former spouses.
Married Couples
If you are married, do you have to get a divorce?
For married couples, divorce is how a marriage legally ends. It is not, however, mandatory to file for divorce after separation. Some separated married couples never seek a divorce for a variety of reasons, however, this can lead to future legal issues and uncertainty.
To obtain a divorce, one spouse must file for a divorce in the Supreme Court of British Columbia.
How do you qualify for a divorce order?
To qualify for a divorce order, a spouse must prove that the marriage has broken down for one of three reasons. The most common reason is separation that has lasted for at least one year. Other less common reasons include adultery, mental cruelty or physical cruelty.
If there are children of the relationship, a judge will require that parenting arrangements and child support are settled before granting a divorce. Typically, divorcing couples will deal with other issues (such as parenting arrangements, child support, spousal support, division of property, etc.) either before applying for a divorce or at the same time as a court application for divorce.
Putting your best foot forward early on in the divorce process can be critical to your support payments and dividing your property with your former spouse.
