Difference between revisions of "Separating and Getting Divorced"

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{{JP Boyd on Family Law TOC|expanded = separation}}
{{JP Boyd on Family Law TOC|expanded = separation}}{{JPBOFL Editor Badge
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{{LSSbadge
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| link = [http://www.familylaw.lss.bc.ca/legal_issues/divorceBasics.php Divorce and Separation basics]
}}Adults separate when they decide that their romantic relationship is over and then take steps to <span class="noglossary">act</span> on that <span class="noglossary">decision</span>. When people in an unmarried relationship separate, their relationship is over and there are no other steps that must be taken to legally end things. When people are married, on the other hand, their relationship isn't legally over until they are divorced, one of them dies, or their marriage is annulled... whichever comes first.


From a lawyer's point of view, marriage is the entry of two people into a new legal relationship which gives each of them certain rights and obligations, both during their marriage and in the event it comes to an end. Separation happens when one or both spouses decide that their married relationship is over. Divorce is the legal dissolution of a valid marriage by an order of the court; annulment is a declaration that a void or voidable marriage is invalid.
This chapter starts by taking a quick look at separation, annulment and divorce, and talks about a few urban myths about separation and divorce. The following sections look in more detail at the legal aspects of [[Separation and the Law|separation]] and [[Divorce and the Law on Getting Divorced|divorce]], the [[Separating Emotionally|emotional dimensions of separation]], and issues about [[Behaviour, Boundaries and Privacy after Separation|privacy and good behaviour after separation]]. The do-it-yourself divorce process is reviewed in a fair amount of detail in the [[Divorce and the Law on Getting Divorced]] section at the end of this chapter.


This chapter provides a brief overview of marriage, separation and divorce, all of which are discussed in greater detail in the following chapters, and looks at a few urban myths about marriage, annulment, separation and divorce. Everything in this section applies to same-sex couples just as it does to opposite-sex couples.
All of the information in this chapter applies just as much to people in same-sex relationships as it does to people in opposite-sex relationships. There is no difference between how the law treats people in same- and opposite-sex relationships in Canada.


The do-it-yourself divorce process and the court forms used in that process are reviewed in a fair amount of detail in the last chapter of this section, Marriage & Divorce > Divorce.
==Introduction==


I. Introduction
The rules about separation and divorce are fairly straightforward, despite some common misunderstandings. Separation simply means making the <span class="noglossary">decision</span> that a relationship has broken down and then acting on that decision. You don't have to move out to separate. You just have to tell your spouse that things have come to an end, that you're ending the relationship, and then behave as if the relationship is over.  


The rules about marriage, separation and divorce are fairly straightforward, despite some fairly common misunderstandings.
Divorce is the legal termination of a married relationship. A divorce is a court order, which means that to get divorced you have to start a court proceeding in which you sue your spouse for a divorce order. Married spouses who have been separated for a dozen years without getting divorced are still married, and they'll remain married until they get a court order for their divorce. (Unmarried spouses don't need to get divorced, no matter how long they've lived together; their relationships are over when they separate.)


To be able to marry, the spouses must, among other things, be unmarried, sane and over a certain age. They must also be married by a person properly licenced to conduct marriages, either a civil marriage commissioner or an authorized religious official. The process for getting married in British Columbia is described in detail in the How do I ? section of this website, and the following chapter, Marriage & Divorce > Marriage, provides a lot more information about the law relating to marriage.
Annulment is another way of ending a marriage. Technically speaking, it's not so much the ''ending'' of a marriage, but a declaration of a judge that there was something wrong with how the marriage was entered into that makes the marriage ''void''. A marriage that is void never happened; there's no ending since the marriage wasn't properly started in the first place.


Separation simply means making the decision that the marriage has broken down. You don't have to move out to separate, you just have to tell your spouse that things have come to an end and that you'd like to end the relationship. The ins and outs of separation are discussed in the Marriage & Divorce > Separation chapter, and some of the things that a couple thinking of separating might want to keep in mind are listed in the How do I ? section. The emotional dimensions of ending a relationship are discussed in the chapter Marriage & Divorce > Separating Emotionally.
===Separation===


Divorce is the legal termination of a marriage. A divorce requires an order of the court ending the marriage; a couple that have been separated for a dozen years are still married, and they'll remain married until they get a court order for their divorce. The rules about divorce and the process required to get a divorce order are discussed in the chapter Marriage & Divorce > Divorce.
Separation is simple. All the people involved have to do is start living "separate and apart" from one another, whether under the same roof or in separate homes. While you don't always have to move into separate homes to separate, you do have to behave as if your relationship is over, and that means that you've: stopped going out together; stopped doing chores and household tasks for each other; stopped sleeping together; stopped eating together; stopped hanging out together; and, started untangling your finances and financial responsibilities.


A. Marriage
Contrary to popular <span class="noglossary">opinion</span>, you don't need to see a lawyer or a judge, or file some sort of court document to obtain a separation. You just need to call it quits, tell the other spouse that it's over, and start acting like it's over.
Assuming that the parties have a valid marriage, they have entered into a new relationship with emotional, social and legal aspects. These different aspects of married life are often intertwined. For example, spouses are entitled to consort with one another and to enjoy the benefits of what are quaintly called conjugal rights; these are legally enforceable rights under the common law (well, the older common law) and, at the same time, they're also clearly emotional and social rights.


1. The Historical Meaning of Marriage
For married couples, separation signals the breakdown of their relationship but doesn't end their marriage. A divorce order under the ''[[Divorce Act]]'' is required to end their marriage.
The law about marriage has changed enormously over the last three centuries, and marriage once had a much more important legal significance than it does today. Before about 1890, a married couple were legally considered to be one person. A husband took ownership of all of his wife's property on marriage and could use his wife's assets as collateral for loans. His wife, one the other hand, lost the ability to hold a bank account in her own name, sell her property without her husband's consent, or start a law suit or run a business in her own name. Women who hadn't married, on the other hand, could own property in their own names, have bank accounts, sue and be sued, and run a business.


The institution of marriage was once of such social significance that people could be sued for attempting to interfere with a married couple's relationship. Until 1972, it was a civil offence to falsely boast that you were married to someone (called "jactitation of marriage") or to lure a spouse away from a married relationship (called "criminal conversation"), and a law suit could be brought against someone for loss of the benefits of marriage ("loss of consortium").
For unmarried people, including unmarried people who qualify as "spouses" under the ''[[Family Law Act]]'', separation is all that's required to end the relationship.


2. Marriage Today
While separation itself is pretty simple, the date a family separates can be very, very important. The date of separation is a very important element in determining how much child support should be paid, how much spousal support should be paid, and how property and debt are divided, and in determining when claims for spousal support and the division of property and debt must be brought. Section 198 of the ''Family Law Act'' says this:
All of these old rules are now extinguished in British Columbia and married couples are no longer considered to be one person, with the husband having sovereign rights over his wife and her property. Since 1978, married women have had exactly the same property rights that unmarried women have, which are also happen to be the same property rights that their husbands have. A husband can no longer apply for credit in his wife's name or use her property as collateral for a loan without her express permission.


If there is a difference between married and being common-law these days, that is, a difference apart from the legal and religious dimensions, it's probably that marriage implies a greater sense of personal commitment to the relationship and a willingness to treat the relationship as a true partnership. It is just too easy to get out of a common-law relationship. Marriage means something more permanent and signals a personal dedication to nuturing and growing the relationship, and to sticking it out through the good times and the bad.
<blockquote><tt>(2) A spouse may start a proceeding for an order under Part 5 [Property Division] to divide property or family debt, Part 6 [Pension Division] to divide a pension, or Part 7 [Child and Spousal Support] for spousal support, no later than 2 years after,</tt></blockquote>
<blockquote><blockquote><tt>(a) in the case of spouses who were married, the date</tt></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(i) a judgment granting a divorce of the spouses is made, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><blockquote><tt>(ii) an order is made declaring the marriage of the spouses to be a nullity, or</tt></blockquote></blockquote></blockquote>
<blockquote><blockquote><tt>(b) in the case of spouses who were living in a marriage-like relationship, the date the spouses separated.</tt></blockquote></blockquote>
<blockquote><tt>(5) The running of the time limits set out in subsection (2) is suspended during any period in which persons are engaged in</tt></blockquote>
<blockquote><blockquote><tt>(a) family dispute resolution with a family dispute resolution professional, or</tt></blockquote></blockquote>
<blockquote><blockquote><tt>(b) a prescribed process.</tt></blockquote></blockquote>


At law, the most significant difference between married and unmarried relationships lies in the consequences of the end of those relationships. There are fairly strict rules that limit the eligibility of common-law couples for spousal support, for example, and only married couples have the benefit of the rules about the division of property set out in the provincial Family Relations Act.
In other words, married people have two years to start a court proceeding for spousal support or the division of property and debt, beginning on the day they are divorced or their marriage is annulled. Unmarried people, on the other hand, have two years to start a court proceeding for spousal support or the division of property and debt, beginning on the day they ''separate''. In both cases, this time limit can be extended when the people involved are trying to resolve their differences out of court.


B. Annulment
===Annulment===
If one or more of the requirements of a valid marriage are lacking, the marriage may be annulled or cancelled. To obtain an annulment, one of the parties must make an application for declaration that the marriage is void. A marriage may be annulled if:


a female spouse was under the age of twelve or a male spouse was under the age of fourteen (the common law ages of puberty);
If one or more of the requirements of a valid marriage are lacking, the marriage may be cancelled, or ''annulled''. To obtain an annulment, one of the parties must apply to court for a declaration that the marriage is void. A marriage may be annulled if:
one or both of the spouses did not consent to the marriage;
a male spouse is impotent or a female spouse is sterile going into the marriage;
the marriage cannot be consumated;
the marriage was a sham; or,
one or both of the spouses agreed to marry as a result of fraud or misrepresentation.
More information about void marriages, voidable marriages and annullment is available in the chapter Marriage & Divorce > Marriage.


C. Separation
*a female spouse was under the age of 12 or a male spouse was under the age of 14 (the common law ages of puberty),
Separation is simple: the parties must simply start living "separate and apart" from one another, whether under the same roof or in separate homes. Contrary to popular opinion, you do not need to see a lawyer or file some sort of court document to obtain a separation. You just need to call it quits and tell the other spouse that it's over.
*one or both of the spouses did not consent to the marriage,
*a male spouse is impotent or a female spouse is sterile going into the marriage,
*the marriage cannot be consummated,
*the marriage was a sham, or
*one or both of the spouses agreed to marry as a result of fraud or misrepresentation.


For married couples, separation signals the breakdown of their relationship but does not release them from the bonds of their marriage. For unmarried couples, including common-law couples, separation is all that's required to end the relationship.
You can get more information about void marriages, voidable marriages, and annulment in the [[Family Relationships]] chapter, in the
section [[Married Spouses and the Law on Marriage]].


D. Divorce
===Divorce===
Divorce is the legal dissolution of a valid marriage. To obtain a divorce, one spouse must sue the other in the Supreme Court of British Columbia, and at least one of the spouses must have been "ordinarily resident" in British Columbia for the preceeding year. In order to qualify for a divorce order, the application must be based on one of three grounds:


separation for a period of not less than one year;
Divorce is the legal end of a valid marriage. To obtain a divorce, one spouse has to sue the other for a divorce order in the [https://www.bccourts.ca/supreme_court/ Supreme Court], and, in general, at least one of the spouses must have been "habitually resident" in British Columbia for the preceding twelve months.  
adultery; or,
mental or physical cruelty.
It is possible to oppose an application for a divorce order, although this rarely happens. In general, once one of the grounds for divorce has been established, the courts will allow the divorce application, despite the objections of the other spouse.


Common-law couples don't need to get divorced to end their relationship with each other, no matter how long they've lived together.
There is only one reason why the court will make a divorce order: it is satisfied that the marriage has broken down. Under section 8(2) of the ''[[Divorce Act]]'', there are three reasons why a marriage may have broken down:


Back to the top of this chapter.
*the spouses have been separated for at least one year,
*a spouse has committed adultery, or
*one spouse has treated the other with such mental or physical cruelty that the spouses cannot continue to live together.  


II. A Few Surprisingly Common Misunderstandings
It is possible to oppose an application for a divorce order, although this rarely happens. In general, once the breakdown of the marriage has been established, the court will allow the divorce application, despite the objections of the other spouse.


A lot of people seem to labour under certain misconceptions about what marriage, separation and divorce actually involve. Part of these misunderstandings, I'm sure, come from television and movies, others are urban myths that get spread during a few pints at the pub.
==A few surprisingly common misunderstandings==


A. Marriage and Getting Married
A lot of people seem to labour under certain misconceptions about what marriage, separation, and divorce actually involve. Part of these misunderstandings, I'm sure, come from television and movies; others are urban myths that get spread over a few pints at the pub and are perpetuated by the internet.
It is not true that a common-law couple is automatically "married" once they've lived together for a certain amount of time. A common-law couple is never legally married unless they have actually had a marriage ceremony. There is no such thing as a "common-law marriage."


You are not legally married unless you have a marriage ceremony and the ceremony is conducted by someone authorized by the provincial government to perform marriages. Your car mechanic can marry you, if your car mechanic is a marriage commissioner, but your Wiccan high priestess cannot legally marry you unless she also happens to be a licenced marriage commissioner.
===Separation and the "legal separation"===


Las Vegas marriages and other sorts of quickie marriages are valid and binding marriages, so long as the marriages meet the criteria for valid marriages, discussed in the next chapter. If you want to undo the marriage, you'll have to get divorced just like every other valid marriage, and that will usually mean waiting until one year has passed since separation. For example, an alcohol-induced Las Vegas marriage was upheld in the very funny 2005 case of Davison v. Sweeney, simply because the spouses knew what they were doing when they married, despite the fact that they had never had sex and separated two days after the marriage, when their respective holidays ended.
There is no such thing as a "legal separation" in British Columbia, nor is it possible to be "legally separated." Whether you're in an unmarried relationship or a formal marriage, you are separated the moment you decide that the relationship is over. That's it, there's no magic to it. When you or your partner announce that the relationship is over and there's no chance of getting back together, boom: you're separated.


B. Separation and the "Legal Separation"
To be crystal clear:
There is no such thing as a "legal separation" in British Columbia, nor is it possible to be "legally separated." Whether you're in a common-law relationship or a formal marriage, you are separated the moment you decide that the relationship is over. That's it, there's no magic to it. When you or your partner announces that the relationship is over and there's no chance of getting back together, boom, you're separated.


To be crystal clear:
*you do not need to "file for separation" to be separated (in fact, there's no such thing in British Columbia as "filing for separation," despite what you might see on the websites of the people who sell do-it-yourself legal kits),
*there are no court documents or other papers you have to sign to be separated, and
*you don't need to appear before a judge, a lawyer, a state official, or anyone else to be separated.
 
To be separated, you just need to decide that your relationship is over, say so, and then live your life like you are in fact separated.
 
====Separation and remarriage====
 
The fact that a married couple is separated isn't enough to let either of the spouses remarry, however. You must be formally divorced by an order of the court in order to remarry. If you do remarry without being divorced from the first marriage, the new marriage won't be valid and you might be looking at criminal charges for bigamy under section 290 of the [https://canlii.ca/t/5533n Criminal Code]!


you do not need to "file for separation" to be separated (in fact, there's no such thing in British Columbia as "filing for separation", despite what you might see on the websites of the people who sell do-it-yourself legal kits);
====Separation and new spousal relationships====
there are no court or other papers you have to sign to be separated; and,
you don't need to appear before a judge, lawyer, shaman or anyone else to be separated.
To be separated, you just need to decide that your relationship is over and say so.


The fact that a couple are separated isn't enough to let a spouse remarry, however. You must be formally divorced by an order of the court in order to remarry. If you do remarry without being divorced from the first marriage, the new marriage will be invalid.
On the other hand, the fact that a married couple has separated won't prevent you from having new relationships, including new sexual relationships and new cohabiting relationships. Technically, this sort of thing &mdash; being in a sexual relationship with anyone other than your spouse &mdash; is adultery, but no one is likely to care. The [[Separation and the Law]] section in this chapter has a lot of information about new relationships after separation.


On the other hand, the fact that you're separated won't stop you from having a new relationship, including a new relationship which would qualify as a common-law relationship. Technically, this is adultery, but no one except the Pope or your in-laws are likely to care.
===Divorce and the "automatic divorce"===


C. Divorce and Getting Divorced
As far as divorce is concerned, a court must make an order for your divorce or you'll never be divorced. You can be separated from your spouse for twenty years, but unless a court has actually made an order for your divorce, you're still married. It'd be nice, and a lot cheaper, if the passage of time made you automatically divorced, but it doesn't work that way.
As far as divorce is concerned, a court must make an order for your divorce or you'll never be divorced. You can have been separated from your spouse for twenty years, but unless a court has actually made an order for your divorce, you'll still be married. It'd be nice (and cheaper) if the passage of time gave rise to an automatic divorce, but it doesn't work that way.


It is not true that you need to have a separation agreement to get a divorce. Separation agreements are helpful to record a settlement of the issues arising when a couple separates, like the division of assets or the payment of support and so forth, but they're not a requirement of the divorce process. You especially don't need a separation agreement if the only issue is whether you'll get a divorce order or not.
====Divorce and separation agreements====


It is not true that you remain married if your spouse dies. Once that happens, your marriage is at an end. You do not need to obtain a divorce.
It is not true that you need to have a separation agreement to get a divorce. Separation agreements are helpful to record a settlement of the legal issues arising when a family separates, like the division of property or the payment of support and so forth, but they're not a requirement of the divorce process. You especially don't need a separation agreement if the only issue is whether you'll get a divorce order or not.


It is also not true that a lack of sex in your relationship automatically ends your marriage, allows the marriage to be declared void, or is otherwise a ground of divorce. Sex has very little to do with divorce, just as it often has little to do with marriage. A lack of sex may spell the end of a relationship and spur a couple's separation, but at law whether you and your spouse are having sex or not is irrelevant.
====Divorce after death====


The one exception to this last rule has to do with the "consumation" of the marriage, and this exception doesn't mean what most people think it means. A marriage does not need to be consumated to be a valid, binding marriage. In order to escape a marriage on this ground, you or your partner must, I kid you not, have an "invincible repugnance" to the act of sexual intercourse or some physicial condition which makes sex impossible.
It is not true that you're married after your spouse dies. Once that happens, your marriage is at an end. You don't need to get a divorce 'cause you're already single again. Congratulations.  


====Divorce for want of sex====


==Further Reading in this Chapter==
It is also not true that a lack of sex in your relationship automatically ends your marriage, allows the marriage to be annulled, or is otherwise a ground of divorce. Sex has very little to do with divorce, just as it often has little to do with marriage. A lack of sex may spell the end of a relationship and spur a separation, but at law, whether you and your spouse are having sex or not is irrelevant.


* <span style="color: red;">bulleted list of other pages in this chapter, linked</span>
The one exception to this general rule has to do with the ''consummation'' of the marriage, and this exception doesn't mean what most people think it means. A marriage doesn't need to be consummated to be a valid, binding marriage. In order to escape a marriage on this ground, you or your partner must, I kid you not, have either some sort of physical condition that makes sex impossible or an "invincible repugnance" to the <span class="noglossary">act</span> of sexual intercourse.


==Page Resources, Documents and Links==
==Resources and links==


===Legislation===
===Legislation===


* <span style="color: red;">bulleted list of linked legislation referred to in page</span>
* ''[https://canlii.ca/t/8q3k Family Law Act]''
FLA, DA
* ''[https://canlii.ca/t/551f9 Divorce Act]''
* ''[https://canlii.ca/t/5533n Criminal Code]''


===Documents===
===Links===
 
* [https://www.bccourts.ca/supreme_court/ BC Supreme Court website]
* [https://www.familieschange.ca/ Families Change] website from the Justice Education Society of BC and BC Ministry of Attorney General
*[https://www.clicklaw.bc.ca/resource/4340 Divorce Fact Sheet] website from the Department of Justice
*[https://www2.gov.bc.ca/gov/content/life-events/divorce/family-justice/who-can-help Support and Resources for Dealing with Separation and Divorce] website from the BC Ministry of Attorney General
*[https://www.clicklaw.bc.ca/resource/4639 Legal Services Society’s Family Law website's information page on Separation & Divorce]
**Under the section "Going through separation" see "Proving you're separated if you and your spouse still live together"
*[https://www.clicklaw.bc.ca/resource/1126 Separation and Separation Agreements] from Dial-a-Law by the People's Law School
*[https://www.clicklaw.bc.ca/resource/1127 Deciding Who Will Move Out When You Separate] from Dial-a-Law by the People's Law School
*[https://www.clicklaw.bc.ca/resource/4648 Going Through Separation] from Legal Aid BC


* <span style="color: red;">bulleted list</span>
===Resources===
SSAG, CRA information bulletin


===Links===
*[https://www.clicklaw.bc.ca/resource/1058 "Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce"] from Legal Aid BC
*[https://www.clicklaw.bc.ca/resource/1529 "Separated with Children - Dealing with the Finances: Parent Workbook"] from the Justice Education Society of BC
*[https://www.clicklaw.bc.ca/resource/4126 "Coping with Separation Handbook"] from Legal Aid BC
*[https://www.clicklaw.bc.ca/resource/2751 "Separation Agreements: Your Rights and Options"] from Legal Aid BC and West Coast LEAF
*[https://www.clicklaw.bc.ca/resource/4139 Parent Guide to Separation and Divorce] from the Justice Education Society of BC
*[https://www.clicklaw.bc.ca/resource/4242 "Legal Health Checks: Breaking Up - Without Court"] from the Canadian Bar Association
*[https://www.clicklaw.bc.ca/resource/4494 "How to Separate" online course] from the Justice Education Society of BC
*[https://www.clicklaw.bc.ca/resource/4760 "Ending Relationships" video] from John-Paul Boyd, QC


* <span style="color: red;">bulleted list of linked external websites referred to in page</span>
* <span style="color: red;">and relarted external resoruces</span>
DoJ, FMP website, CRA website


{{REVIEWED | reviewer = [[JP Boyd]], 12 March 2023}}


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Latest revision as of 22:39, 11 January 2024

JP Boyd on Family Law
JP Boyd on Family Law
This page is

from the Clicklaw Wikibook JP Boyd on Family Law. See the full contents

and the list of contributors.
Getting Started
Introduction · Family Law in BC
Definitions · Legislation
Divorce Act Basics · Family Law Act Basics
Chapters
Separation and Divorce
 · Separating Emotionally

 · Behaviour & Boundaries

 · Separation and the Law

 · Divorce Law
Court Forms & Documents
Supreme Court: Forms & Examples
Provincial Court: Forms & Examples
Other Family Law Forms & Documents

Helpful Guides & Common Questions
View See more topics

From the Author
Editorial Manifesto · Rights & Duties of Self-Represented Litigants
v • d • e
Page Editor(s)
JP Boyd, KC
Previously: Vanessa Van Sickle
Read: Past contributors
LSSbadge.jpg
Legal Aid BC's
Family Law in BC website
has more information on
Divorce and Separation basics.

Adults separate when they decide that their romantic relationship is over and then take steps to act on that decision. When people in an unmarried relationship separate, their relationship is over and there are no other steps that must be taken to legally end things. When people are married, on the other hand, their relationship isn't legally over until they are divorced, one of them dies, or their marriage is annulled... whichever comes first.

This chapter starts by taking a quick look at separation, annulment and divorce, and talks about a few urban myths about separation and divorce. The following sections look in more detail at the legal aspects of separation and divorce, the emotional dimensions of separation, and issues about privacy and good behaviour after separation. The do-it-yourself divorce process is reviewed in a fair amount of detail in the Divorce and the Law on Getting Divorced section at the end of this chapter.

All of the information in this chapter applies just as much to people in same-sex relationships as it does to people in opposite-sex relationships. There is no difference between how the law treats people in same- and opposite-sex relationships in Canada.

Introduction

The rules about separation and divorce are fairly straightforward, despite some common misunderstandings. Separation simply means making the decision that a relationship has broken down and then acting on that decision. You don't have to move out to separate. You just have to tell your spouse that things have come to an end, that you're ending the relationship, and then behave as if the relationship is over.

Divorce is the legal termination of a married relationship. A divorce is a court order, which means that to get divorced you have to start a court proceeding in which you sue your spouse for a divorce order. Married spouses who have been separated for a dozen years without getting divorced are still married, and they'll remain married until they get a court order for their divorce. (Unmarried spouses don't need to get divorced, no matter how long they've lived together; their relationships are over when they separate.)

Annulment is another way of ending a marriage. Technically speaking, it's not so much the ending of a marriage, but a declaration of a judge that there was something wrong with how the marriage was entered into that makes the marriage void. A marriage that is void never happened; there's no ending since the marriage wasn't properly started in the first place.

Separation

Separation is simple. All the people involved have to do is start living "separate and apart" from one another, whether under the same roof or in separate homes. While you don't always have to move into separate homes to separate, you do have to behave as if your relationship is over, and that means that you've: stopped going out together; stopped doing chores and household tasks for each other; stopped sleeping together; stopped eating together; stopped hanging out together; and, started untangling your finances and financial responsibilities.

Contrary to popular opinion, you don't need to see a lawyer or a judge, or file some sort of court document to obtain a separation. You just need to call it quits, tell the other spouse that it's over, and start acting like it's over.

For married couples, separation signals the breakdown of their relationship but doesn't end their marriage. A divorce order under the Divorce Act is required to end their marriage.

For unmarried people, including unmarried people who qualify as "spouses" under the Family Law Act, separation is all that's required to end the relationship.

While separation itself is pretty simple, the date a family separates can be very, very important. The date of separation is a very important element in determining how much child support should be paid, how much spousal support should be paid, and how property and debt are divided, and in determining when claims for spousal support and the division of property and debt must be brought. Section 198 of the Family Law Act says this:

(2) A spouse may start a proceeding for an order under Part 5 [Property Division] to divide property or family debt, Part 6 [Pension Division] to divide a pension, or Part 7 [Child and Spousal Support] for spousal support, no later than 2 years after,

(a) in the case of spouses who were married, the date

(i) a judgment granting a divorce of the spouses is made, or

(ii) an order is made declaring the marriage of the spouses to be a nullity, or

(b) in the case of spouses who were living in a marriage-like relationship, the date the spouses separated.

(5) The running of the time limits set out in subsection (2) is suspended during any period in which persons are engaged in

(a) family dispute resolution with a family dispute resolution professional, or

(b) a prescribed process.

In other words, married people have two years to start a court proceeding for spousal support or the division of property and debt, beginning on the day they are divorced or their marriage is annulled. Unmarried people, on the other hand, have two years to start a court proceeding for spousal support or the division of property and debt, beginning on the day they separate. In both cases, this time limit can be extended when the people involved are trying to resolve their differences out of court.

Annulment

If one or more of the requirements of a valid marriage are lacking, the marriage may be cancelled, or annulled. To obtain an annulment, one of the parties must apply to court for a declaration that the marriage is void. A marriage may be annulled if:

  • a female spouse was under the age of 12 or a male spouse was under the age of 14 (the common law ages of puberty),
  • one or both of the spouses did not consent to the marriage,
  • a male spouse is impotent or a female spouse is sterile going into the marriage,
  • the marriage cannot be consummated,
  • the marriage was a sham, or
  • one or both of the spouses agreed to marry as a result of fraud or misrepresentation.

You can get more information about void marriages, voidable marriages, and annulment in the Family Relationships chapter, in the section Married Spouses and the Law on Marriage.

Divorce

Divorce is the legal end of a valid marriage. To obtain a divorce, one spouse has to sue the other for a divorce order in the Supreme Court, and, in general, at least one of the spouses must have been "habitually resident" in British Columbia for the preceding twelve months.

There is only one reason why the court will make a divorce order: it is satisfied that the marriage has broken down. Under section 8(2) of the Divorce Act, there are three reasons why a marriage may have broken down:

  • the spouses have been separated for at least one year,
  • a spouse has committed adultery, or
  • one spouse has treated the other with such mental or physical cruelty that the spouses cannot continue to live together.

It is possible to oppose an application for a divorce order, although this rarely happens. In general, once the breakdown of the marriage has been established, the court will allow the divorce application, despite the objections of the other spouse.

A few surprisingly common misunderstandings

A lot of people seem to labour under certain misconceptions about what marriage, separation, and divorce actually involve. Part of these misunderstandings, I'm sure, come from television and movies; others are urban myths that get spread over a few pints at the pub and are perpetuated by the internet.

Separation and the "legal separation"

There is no such thing as a "legal separation" in British Columbia, nor is it possible to be "legally separated." Whether you're in an unmarried relationship or a formal marriage, you are separated the moment you decide that the relationship is over. That's it, there's no magic to it. When you or your partner announce that the relationship is over and there's no chance of getting back together, boom: you're separated.

To be crystal clear:

  • you do not need to "file for separation" to be separated (in fact, there's no such thing in British Columbia as "filing for separation," despite what you might see on the websites of the people who sell do-it-yourself legal kits),
  • there are no court documents or other papers you have to sign to be separated, and
  • you don't need to appear before a judge, a lawyer, a state official, or anyone else to be separated.

To be separated, you just need to decide that your relationship is over, say so, and then live your life like you are in fact separated.

Separation and remarriage

The fact that a married couple is separated isn't enough to let either of the spouses remarry, however. You must be formally divorced by an order of the court in order to remarry. If you do remarry without being divorced from the first marriage, the new marriage won't be valid and you might be looking at criminal charges for bigamy under section 290 of the Criminal Code!

Separation and new spousal relationships

On the other hand, the fact that a married couple has separated won't prevent you from having new relationships, including new sexual relationships and new cohabiting relationships. Technically, this sort of thing — being in a sexual relationship with anyone other than your spouse — is adultery, but no one is likely to care. The Separation and the Law section in this chapter has a lot of information about new relationships after separation.

Divorce and the "automatic divorce"

As far as divorce is concerned, a court must make an order for your divorce or you'll never be divorced. You can be separated from your spouse for twenty years, but unless a court has actually made an order for your divorce, you're still married. It'd be nice, and a lot cheaper, if the passage of time made you automatically divorced, but it doesn't work that way.

Divorce and separation agreements

It is not true that you need to have a separation agreement to get a divorce. Separation agreements are helpful to record a settlement of the legal issues arising when a family separates, like the division of property or the payment of support and so forth, but they're not a requirement of the divorce process. You especially don't need a separation agreement if the only issue is whether you'll get a divorce order or not.

Divorce after death

It is not true that you're married after your spouse dies. Once that happens, your marriage is at an end. You don't need to get a divorce 'cause you're already single again. Congratulations.

Divorce for want of sex

It is also not true that a lack of sex in your relationship automatically ends your marriage, allows the marriage to be annulled, or is otherwise a ground of divorce. Sex has very little to do with divorce, just as it often has little to do with marriage. A lack of sex may spell the end of a relationship and spur a separation, but at law, whether you and your spouse are having sex or not is irrelevant.

The one exception to this general rule has to do with the consummation of the marriage, and this exception doesn't mean what most people think it means. A marriage doesn't need to be consummated to be a valid, binding marriage. In order to escape a marriage on this ground, you or your partner must, I kid you not, have either some sort of physical condition that makes sex impossible or an "invincible repugnance" to the act of sexual intercourse.

Resources and links

Legislation

Links

Resources


This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 12 March 2023.


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