When your marriage has broken down, what do you need to do get a “legal separation” in BC? The answer may surprise you.
Many who are going through separation and divorce are under the impression that they need to file a document or apply to the courts to become separated in BC. In fact, there is no such thing as filing for “legal separation” and no document you need to sign to become separated from your spouse. So how does a married couple become separated in BC? Our team of BC family lawyers prepared this list of FAQs surrounding the process of separation and divorce in BC to help spouses who navigate the end of their marriage. If you have questions that are not answered in this list, contact Bronson Jones & Company LLP today at 1-855-852-5100 to speak to one of our team of experienced BC separation and divorce lawyers. How do separate from my spouse in BC? The law in BC is that you are separated as soon as you and your spouse start living separate and apart, and at least one of you wants to end the relationship (which means that you do not need your spouse’s permission to separate, but you do need to communicate your decision to your spouse). This is true not just in BC, but Canada-wide, because the federal Divorce Act governs separation, marriage, and divorce throughout all of Canada. How do I show that my ex and I are living “separate and apart”? When the spouses jointly decide to end the relationship and one spouse physically moves out of the house the spouses shared during their marriage, the issue of living “separate and apart” is pretty clear-cut. Of course, life is not always so tidy. Some spouses already lived in separate residences during the marriage (because of work, family commitments, military service, personal preference, etc.) so it is less clear when they began living separate and apart for the purposes of separation and divorce. Other spouses stay living together under the same roof after they have separated (for financial reasons, so that both can be close to the children, etc.). The key to determining whether the spouses are living separate and apart, and thus have separated, is to look at whether they have ended their life together as a couple. There is a legal test to determine whether spouses have separated, which applies regardless of whether the couple are physically living separate and apart. The court will consider the relationship as a whole and factors such as whether you and your spouse continue to share things like meals, a bedroom, a bank account, and social functions. Are separation and divorce different? Yes. Separation comes first and must last for a full year before a divorce can be granted by the courts (unless you are claiming for a divorce on the grounds of adultery or physical or mental cruelty). That means you are still legally married during your separation from your spouse and remain legally married, despite living separate and apart, until you have obtained a divorce order from the court. How do I legally end my marriage? To legally end your marriage the court must grant you a divorce order, which requires you to establish that there has been breakdown of the marriage. As touched on in the previous section, there are three grounds for establishing breakdown of a marriage, which are set out in the Divorce Act. A married spouse (or both spouses) may apply to court for a divorce order: (1) on the grounds that the spouses have lived separate and apart for one full year leading up to the divorce proceedings; (2) on the grounds of adultery; or (3) on the grounds that one of the spouses treated the other spouse with physical or mental cruelty so that living together was no longer tolerable. If applying on the basis of grounds #2 or #3, a married spouse can bring a divorce application sooner than one year from the date of separation. If applying on the basis of #1, the divorce application must wait the one-year period. It is important to note as well that BC courts will not typically make a divorce order until all other issues have been resolved, such as child support, spousal support, the division of property and debt, and child custody and access. What if my spouse and I get back together after we separate? The process of separation can be a very emotional time and the fact that spouses have separated does not necessary mean that divorce is inevitable. The Divorce Act recognizes that spouses often attempt to work on their relationship after separating and may reconcile after separation. The Divorce Act is actually designed to allow spouses to attempt reconciliation without interrupting the one-year period of living separate and apart that is required to obtain an order for divorce. Specially, the Divorce Act states that married spouses can resume cohabitation for the primary purpose of reconciliation for a period of up to a total of 90 days without stopping the clock on the one-year period of being separated. If the period of reconciliation lasts for more than a total of 90 days, then the one-year period must start over if and when the spouses separate again. How do I become separated or divorced from my common law spouse? Under BC family law, spouses can be married, or they can live together in a “marriage-like relationship” (also known as a common law marriage). Common law spouses do not need to get divorced. For unmarried spouses and other unmarried couples, the relationship is over as soon as they separate. The Divorce Act does not apply to common law spouses. Instead, common law relationships are governed by BC’s Family Law Act, which does not contain provisions about separation or reconciliation attempts (except in relation to property, a discussion of which is outside the scope of this discussion – contact our BC family lawyers if you are at the end of a common law relationship and have questions about property claims). What if I need more advice in relation to my BC family law matter? The process of separation and divorce can be extremely difficult. Having an experienced BC family lawyer to guide you will make the process less stressful and ensure that your legal rights are protected. Call Bronson Jones & Company LLP’s team of BC separation and divorce lawyers today at 1-855-852-5100 to schedule your consultation.