Separating and Getting Divorced

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 Separating 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

• Family Law Act
• Divorce Act
• Criminal Code

Links

• BC Supreme Court website
• Families Change website from the Justice Education Society of BC and BC Ministry of Attorney General
• Divorce Fact Sheet website from the Department of Justice
• Support and Resources for Dealing with Separation and Divorce website from the BC Ministry of Attorney General
• 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"
• Separation and Separation Agreements from Dial-a-Law by the People's Law School
• Deciding Who Will Move Out When You Separate from Dial-a-Law by the People's Law School
• MyLaw BC Make a Separation Plan Pathway from Legal Aid BC
• Going Through Separation from Legal Aid BC

Resources

• "Living Together or Living Apart: Common-Law Relationships, Marriage, Separation, and Divorce" from Legal Aid BC
• "Separated with Children - Dealing with the Finances: Parent Workbook" from the Justice Education Society of BC
• "Coping with Separation Handbook" from Legal Aid BC
• "Separation Agreements: Your Rights and Options" from Legal Aid BC and West Coast LEAF
• Parent Guide to Separation and Divorce from the Justice Education Society of BC
• "Legal Health Checks: Breaking Up - Without Court" from the Canadian Bar Association
• "How to Separate" online course from the Justice Education Society of BC
• "Ending Relationships" video from John-Paul Boyd, QC

This information applies to British Columbia, Canada. Last reviewed for legal accuracy by JP Boyd, 12 March 2020.

JP Boyd on Family Law © John-Paul Boyd and Courthouse Libraries BC is licensed under a Creative Commons Attribution-NonCommercial-ShareAlike 2.5 Canada Licence.

In family law, the decision of one or both parties to terminate a married or unmarried relationship; the act of one person leaving the family home to live somewhere else with the intention of terminating the relationship. There is no such thing as a "legal separation." In general, one separates by simply moving out, however, it is possible to be separated but still live under the same roof. See "divorce, grounds of."

A declaration by a judge that a marriage is invalid. The effect of such a declaration is to cancel the marriage from the moment it took place, as if the marriage never occurred. See "ab initio," "declaration," and "marriage, validity of."

The legal termination of a valid marriage by an order of a judge; the ending of a marital relationship and the conjugal obligations of each spouse to the other. See "conjugal rights," "marriage" and "marriage, validity of."

In law, (1) a judge's conclusions after hearing argument and considering the evidence presented at a trial or an application, (2) a judgment, or (3) the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as their findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusions of law" and "findings of fact."

Under the Divorce Act, either of two people who are married to one another, whether of the same or opposite genders. Under the Family Law Act, spouse includes married spouses, unmarried parties who have lived together in a marriage-like relationship for at least two years, and, for all purposes of the act other than the division of property or debt, unmarried parties who have lived together for less than two years and have had a child together. See "marriage" and "marriage-like relationship."

A mandatory direction of the court that is binding and enforceable upon the parties to a court proceeding. An "interim order" is a temporary order made following the hearing of an interim application. A "final order" is a permanent order, made following the trial of the court proceeding or the parties' settlement, following which the only recourse open to a dissatisfied party is to appeal. Failing to abide by the terms of an order may constitute contempt of court. See "appeal," "consent order," "contempt of court," "decision" and "declaration."

A legal proceeding in which one party sues another for a specific remedy or relief, also called an "action," a "lawsuit," or a "case." A court proceeding for divorce, for example, is a proceeding in which the claimant sues the respondent for the relief of a divorce order.

A legal relationship between two persons, whether of the same or opposite genders, that is solemnized by a marriage commissioner or licenced religious official and gives rise to certain mutual rights, benefits, and obligations. See also "conjugal rights," "consortium," and "marriage, validity of."

In law, a pronouncement of the court about a fact or a state of affairs, such as a declaration that a marriage is void or that a person is the guardian of a child. Not to be confused with an order, which is a mandatory direction of the court requiring a party to do or not do something. See "order."

A person appointed by the federal or provincial government to manage and decide court proceedings in an impartial manner, independent of influence by the parties, the government, or agents of the government. The decisions of a judge are binding upon the parties to the proceeding, subject to appeal.

A person licensed to practice law in a particular jurisdiction by that jurisdiction's law society. See "barrister and solicitor."

Money paid by one parent or guardian to another parent or guardian as a contribution toward the cost of a child's living and other expenses.

A payment made by one spouse to the other spouse to help with the recipient's day-to-day living expenses or to compensate the recipient for the financial choices the spouses made during the relationship.

Something which can be owned. See "chattels" and "real property."

A sum of money or an obligation owed by one person to another. A "debtor" is a person responsible for paying a debt; a "creditor" is the person to whom the debt is owed.

In law, (1) the whole of the conduct of a court proceeding, from beginning to end, and the steps in between, may also be used to refer to (2) a specific hearing or trial. See "action."

A term under the Family Law Act referring to debt owed by either or both spouses that accumulated during the spouses' relationship, as well as after separation if used to maintain family property. Both spouses are presumed to be equally liable for family debt.

A judge's conclusions after hearing argument and considering the evidence presented at a trial or an application; a decision, the judge's reasons. A judge's written or oral decision will include the judge's conclusions about the relief or remedies claimed as well as the judge's findings of fact and conclusions of law. A written decision is called the judge’s "reasons for judgment." See "common law," "conclusion of law," "finding of fact" and "final judgment."

In family law, the quality of an unmarried couple's relationship that demonstrates their commitment to each other, their perception of themselves as a couple, and their willingness to sacrifice individual advantages for the advantage of themselves as a couple; a legal requirement for a couple to be considered spouses under the Family Law Act without marrying. See "cohabitation," "marriage," and "spouse."

Processes used to resolve legal disputes, including negotiation, collaborative settlement processes, mediation, arbitration and litigation.

(1) The legal principle under which courts are bound to follow the principles established by previous courts in similar cases dealing with similar facts, or (2) the system of justice used in non-criminal cases in all provinces and territories except Quebec.

Acts or words tending or intended to give a misleading or false impression as to the true state of affairs. See "bad faith."

A married person's voluntary sexual intercourse with a person other than their spouse, also known as cheating, playing the field and fishing out of season. Proof of adultery is grounds for an immediate divorce, providing that the spouse complaining of the adultery can prove that the adultery occurred and that they have not consented to or forgiven the adulterous act. See "collusion," "condonation," and "divorce, grounds of."

In family law, the physical, verbal, emotional, or mental abuse of one married spouse by the other. Proof of cruelty is grounds for an immediate divorce, providing that the other spouse has not forgiven the cruelty. See "condonation" and "divorce, grounds of."

A request to the court that it make a specific order, usually on an interim or temporary basis, also called a "chambers application" or a "motion." See also "interim application" and "relief."

The act of going through a form of marriage ceremony with one person while being already married to someone else, or with a person who is already married to someone else. This is a criminal offence in Canada, under section 290 of the Criminal Code, although one that is rarely, if ever, enforced. Bigamous marriages, marriages subsequent to the first, are void ab initio. See "ab initio," "marriage, validity of," and "polygamy."

A contract intended to resolve all or some of the legal issues arising from the breakdown of a relationship and intended to guide the parties in their dealings with one another into the future. A typical separation agreement is signed following a settlement reached through negotiation and deals with issues including guardianship, parenting arrangements, contact, support, the division of property, and the division of debt. See "family law agreements."

A resolution of one or more issues in a court proceeding or legal dispute with the agreement of the parties to the proceeding or dispute, usually recorded in a written agreement or in an order that all parties agree the court should make. A court proceeding can be settled at any time before the conclusion of trial. See "action," "consent order," "family law agreements" and "offer."

(1) In law, a requirement or obligation to honour and abide by something, such as a contract or order of the court. A judge's order is "binding" in the sense that it must be obeyed or a certain punishment will be imposed. (2) The principle that a higher court's decision on a point of law must be followed by a lower court. See "contempt of court" and "precedent."

The abbreviation of "Queen's Counsel." Under the reign of Her Majesty Queen Elizabeth II, QC was an honour often, but not invariably, granted to lawyers of particular excellence, and could also be granted for other reasons such as service to the legal community, the public or a political party. Since the passing of Her Majesty and the succession of His Majesty King Charles III, the recipients of this honour, past and present, are called King's Counsel, abbreviated as KC.

Normally referred to as the "Supreme Court of British Columbia," this court hears most of the trials in this province. The Supreme Court is a court of inherent jurisdiction and has no limits on the sorts of claims it can hear or on the sorts of orders it can make. Decisions of the Provincial Court are appealed to the Supreme Court; decisions of the Supreme Court are appealed to the Court of Appeal. See "Court of Appeal," "jurisdiction," "Provincial Court" and "Supreme Court of Canada."

A court established and staffed by the provincial government, which includes Small Claims Court, Youth Court, and Family Court. The Provincial Court is the lowest level of court in British Columbia and is restricted in the sorts of matters it can deal with. It is, however, the most accessible of the two trial courts and no fees are charged to begin or defend a family law proceeding. The Family Court of the Provincial Court cannot deal with the division of family property or any claims under the Divorce Act. See "Divorce Act," "judge" and "jurisdiction."