People often ask what the difference is between a separation and a divorce. Does it really matter or is it just a technicality? The answer is YES. There are some very important legal differences between the two that are important to take note of if you are thinking about moving towards a separation or divorce.
A separation is often the first step a couple takes before getting a divorce. A couple can be separated but still legally married; only divorce will dissolve the marriage. Living “separate and apart” means that one person has withdrawn from the relationship and there is no reasonable prospect for reconciliation. A couple might still be living under the same roof but be considered to have separated. Sometimes people ask how they get a “legal separation”. Usually what they are asking is what they need to do to formalize the issues related to the separation, which is typically done through the negotiation of a Separation Agreement or by obtaining a court Order outlining the terms of parenting, support and division of property.
You can obtain a divorce in Canada if you have lived “separate and apart” for at least one year (this may be shortened if there is adultery or cruelty but that is a topic for another blog). The date of separation is important for this purpose. The date of separation may also be the “valuation date”, the date upon which property is valued for the purposes of determining property equalization.
The divorce is the final step in legally ending a marriage.
Once divorced you will not be covered under your former spouse’s benefit plan. An ex-spouse will likely lose entitlement to survivor’s benefits under a pension plan. Should you pass away without a will in place, a divorce also changes your former spouse’s entitlement to share in your estate. If there is a will in place, any gift to a former spouse will be declared a nullity and any appointment of the former spouse as executor or trustee will be revoked.
Divorce is not automatic and is not granted just because you have been separated for a period of time. It is also important to remember that you can only remarry one you are officially divorced.
Some people choose to remain separated and never go through the divorce process, while others want to cut ties completely as soon as possible. Regardless, it is important that you are aware of the differences between being separated and divorced so you know the legal status of your relationship at every stage of the process.