Separating and Getting Divorced

A couple separates when one or both spouses decide that their relationship is over and then take steps to carry out that decision. A divorce is the legal dissolution of a valid marriage by an order of the court; an annulment is a declaration that a void or voidable marriage is invalid. Unmarried spouses do not need to get a divorce or an annulment to end their relationships.

This takes a quick look at separation and divorce, both of which are discussed in greater detail in the following pages, and looks at a few urban myths about separation and divorce. Everything in this chapter applies to same-sex couples just as it does to opposite-sex couples. The do-it-yourself divorce process is reviewed in a fair amount of detail in the last page of this chapter, __________ .

The rules about marriage, separation and divorce are fairly straightforward, despite some fairly common misunderstandings.

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.

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.

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.

Introduction

The rules about separation and divorce are fairly straightforward, despite some fairly common misunderstandings.

Separation simply means making the decision that a relationship 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.

Divorce is the legal termination of a married relationship. A divorce requires an order of the court ending the marriage; a couple that has been separated for a dozen years are still married, and they'll remain married until they get a court order for their divorce. Unmarried spouses do not need to get divorced; their relationships are over when they separate.

Separation

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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.

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.

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:

1. 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);
2. one or both of the spouses did not consent to the marriage;
3. a male spouse is impotent or a female spouse is sterile going into the marriage;
4. the marriage cannot be consumated;
5. the marriage was a sham; or,
6. 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.

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:

1. separation for a period of not less than one year;
2. adultery; or,
3. 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.

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 during a few pints at the pub.

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 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:

1. 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);
2. there are no court or other papers you have to sign to be separated; and,
3. 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 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 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 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.

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 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.

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.

Further Reading in this Chapter

• bulleted list of other pages in this chapter, linked

Page Resources and Links

Legislation

• bulleted list of linked legislation referred to in page

FLA, DA

Links

• bulleted list of linked external websites referred to in page
• and relarted external resoruces

DoJ, FMP website, CRA website