Separation and divorce are two important concepts in family law. Both indicate the end of a couple’s romantic relationship, and both can significantly impact a family. Contrary to what many people believe, separation and divorce are two completely different concepts.
What is separation?
Separation is the termination of a common-law relationship. It occurs when one or both partners in the relationship indicate their decision to break their romantic ties. The partners lead separate lives bringing an end to mutual sexual relations, socializing and other shared activities.
The ex-spouses need not live in separate dwellings to be separated, although living apart could make it easier to deal with some of the consequences of a separation.
In the case of married couples, separation means that spouses live separate lives after the relationship has broken down, but remain married. Separation often precedes a divorce. However, there are cases in which spouses use the time apart to repair the marriage.
There exist no legal termination process for couples who wish to separate, and in British Columbia, there is no such concept as a legal separation. Couples who wish to separate need not hire a lawyer, file any papers or appear in court to end the relationship. Termination is immediate once at least one party decides to end the relationship and takes steps to live separately.
What is divorce?
Divorce, in contrast, is the legal dissolution of a marriage. Only legally married couples can divorce.
Applications for divorce are made to the Supreme Court. Provided that you or your spouse has lived in British Columbia for at least a year, either party may apply for a divorce in the province. Applicants must, however, prove any one of the following circumstances for the courts to order a divorce:
- The parties have been separated for at least a year;
- There was adultery; or,
- There was extreme mental or physical cruelty.
While divorce orders may be obtained after a year of separation, cases that involve children tend to lengthen that time. Judges must ensure that the best interests of the child are met before a divorce is granted.
Spouses are officially divorced 31 days after a judge signs the divorce order. Once official, divorcees may apply for a divorce certificate that provides proof of divorce. Proof of divorce releases an ex-spouse from any benefits and obligations of a previous marriage and allows him or her to remarry.
Changes to British Columbia’s family law
On March 18, 2013, the new Family Law Act was enacted that changed the status of couples in common-law relationships. The law redefined the term Spouse and gave couples who had lived together continuously for at least two years the same rights as those who are married. Couples, therefore, have rights to the equal division of family property after separation, as well as an equal share of any increase in the value of property brought into the relationship. Time limits for applications for property division and spousal support are, however, different.
In the case of property division, ex-spouses of common-law relationships must apply for property division within two years of the date of separation. Divorcees, on the other hand, must apply within two years of divorce.
Spousal support is not an automatic benefit under the law. Only eligible ex-spouses can make an application to the courts. Ex-spouses of common-law relationships must apply to the courts within two years of separation.
Divorcees have the option of applying for spousal support under the Family Law Act or the Divorce Act. The Family Law Act requires that divorcees apply within two years of a divorce. The Divorce Act has no time limitation.
Once an application for property division or spousal/child support has been made, the ex-spouse will likely be assessed to verify the claim of separation. Some of the factors that may be included in the assessment are:
- Whether the spouses live in separate bedrooms
- Whether spouses socialize as a couple
- Whether the couple is engaged in sexual relations
- Whether the spouses share meals
- Arrangements of previously shared expenses
Are you thinking of getting a divorce?
If you are thinking of getting a divorce and need a Surrey divorce lawyer, contact us at Nirwan Law Corporation. Divorce can be an emotionally challenging experience, and it can be a complicated process, especially if there are children and assets involved.
Our divorce lawyers can provide you with solid representation as they expertly navigate the divorce process to reach your desired outcome.
If you are separated and are dealing with family law matters, we can help then as well.