Separation vs Divorce: What Does It Mean And What Are The Differences
You wonder what is separation vs divorce?
What are the legal consequences when married couples separate vs common-law couples?
There’s also something called legal separation, what is that?
In this article, we go over the concept of separation, divorce and legal separation so you can understand the differences.
Let’s get started…
Separation definition
Separation is the process where married couples or common-law couples separate from one another and no longer live in a union or relationship.
Separation is a broad term referring to the splitting up of the couple.
The separation of couples is often a challenging process for the individuals involved.
The separation may be temporary or permanent.
Separating may involve emotional hardship, financial challenges, changing habits and living arrangements and more.
Some couples are able to manage their separation in a peaceful way minimizing the negative consequences in their lives.
Unfortunately, other couples may go through a contentious and disputed separation charged with negative emotions and anger.
What does separation mean for married couples and common-law couples?
What is separation for married couples
The separation for married couples means that the couple intends to live separate and apart.
If the intention is to separate permanently, then you’ll need to determine if you want to put an end to your marriage or not.
In most cases, married couples separating definitively will ask for the court to dissolve their marriage through a divorce judgment.
However, some married couples may decide to separate but not actually get divorced.
In this case, the couple will live separately and handle their affairs independently from one another but they do not complete the legal steps to get a divorce.
At the end of the day, most married couples will decide to get a divorce once they separate, some may decide to separate and remain married.
Separated and getting a divorce
Often, married couples that separate will file for divorce.
This means that not only they are intending to stay separated but their separation may be irreversible.
The couple will no longer want to continue living together and consuming the marriage.
When you get a divorce, you no longer have any obligations imposed on you by law to cohabitate with your spouse or be financially responsible in some cases.
As a married couple, one spouse can legally bind the other spouse for the current financial needs of the family.
When the couple gets divorced, then an ex-spouse will no longer be able to bind the other spouse in any way with third parties.
Separated by remaining married
In some cases, not often though, some couples decide to separate from one another but remain married.
There may be many reasons why couples may want to stay married.
Perhaps it’s for religious reasons.
Perhaps it’s to take advantage of a tax benefit.
It can even be because they just don’t feel like going through a divorce process.
Following their separation, the couple will lead an independent life and perhaps even find another partner with whom they get into a defacto relationship.
Being separated and married does have some risk.
Under Quebec family law, the law states that both spouses together take in hand the moral and material direction of the family.
It also states that the spouses must contribute to the expenses of the marriage in proportion to their respective means.
What’s more is that a spouse who enters into a contract for the current needs of the family also binds the other spouse for the whole.
This means that although you may be separated, the law still recognizes you as a married couple and imposes the same obligations as before.
If a spouse acts in a way to financially bind the other, the other spouse must make sure to notify his or her intention not to be bound by the obligation.
If one day, a spouse wants to remarry, they’ll need to get a divorce and still deal with potential recourse for division of assets, alimony and other elements.
Unless you are sure that you will not remarry and that you will not ask for a divorce in the future, it’s not ideal to separate and remain married.
Amicable separation of married couples
If the married couple intends to file for a divorce following their separation, they’ll need to agree on the terms and conditions of their separation.
Under the rules of separation in marriage and the applicable separation laws or divorce laws, the couple will need to address certain mandatory topics.
For example, a married couple must decide on the following points:
- Separation of property
- Spousal support or alimony
- Child support if they have a child
- Custody and decision-making responsibilities on a child
In Canada, the Divorce Act establishes the points on which married couples must agree upon.
When the married couple amicably agrees on the terms of their divorce, they’ll generally sign an agreement that they will file in court along with their divorce application.
Based on that agreement, the court will render a divorce judgment.
The divorce and family laws may appear as a burdensome process but generally the provisions of the law allow for a fair and equitable partition of assets and distribution of risk in the separation of the parties.
It may not look like it to parties going through a divorce process as they may be overwhelmed with emotional hardship, financial pressures, lawyers, lawsuits etc.
The laws are not perfect but in most cases, the consequences of the separation of married couples get split in such a way the couple can find ways to resume their lives independently.
Disputed separation of married couples
If the married couple is unable to reach an agreement on all aspects of their divorce, then the matter is considered to be disputed.
Any of the spouses can file a divorce application and seek remedies or relief from the family court.
Depending on the nature of the dispute, the matter can be resolve quickly or can go all the way to trial.
Statistically, 93% of all family law cases get settled before a final judgment is rendered by the court.
This means that only 7% of all family law cases end up in trial for a court to have to render a divorce judgment to settle the dispute of the parties.
Divorce laws protect the vulnerable spouse
Married couples have the protections and remedies provided in the Divorce Act.
Although a divorce process may appear complicated at face value, you will see very often a vulnerable spouse against another.
The divorce laws and family laws have the objective of leveling the playing field.
Legal separation
In Quebec, we have the concept of legal separation.
Legal separation is an option available only to married couples.
The official term for this is “separation from bed and board”.
To request legal separation, you are essentially asking that the court decide on the consequences of your separation, partition assets, award spousal support and alimony and even get a legal separation judgment.
The difference between separation vs divorce is that the legal separation judgment does not dissolve the marriage whereas the divorce judgment dissolves the marital bond.
A legal separation can be requested in situations where the couple wants to get a divorce but do not meet the requirements to file a divorce application.
A couple may want to keep the marital bond for religious reasons.
No matter the reason, legal separation in Quebec is governed by the Quebec laws whereas a divorce is governed by the Canadian federal laws.
Both legal separation and divorce offer similar, if not identical, legal protections to the spouses.
What is separation for common-law couples
Common-law couples are not married by definition but in a de facto relationship.
This means that they do not have the obligations of married couples to provide each other with fidelity, succour and assistance and share a community of life.
They will also not be financially accountable for some actions taken by the other spouse during their relationship or after.
The separation for a common-law couple comes down to the couple mutually agreeing to the terms of their separation.
If the couple can reach an agreement, then it’s settled.
If not, the couple may need to seek relief from the court just like married couples.
Many couples choose not to get married as they fear horrible consequences of having to go through a divorce process.
However, what most people don’t realize is that common-law couples tend to live exactly like married couples, the only difference between them is the married.
If a common-law couple was together for a long time and invested a lot of time and resources for the benefit of the relationship, upon separation, they may realize that they may be faced with the absence of a proper legal regime to help them overcome vulnerabilities.
Legal consequence of common-law separation
What is the legal consequence of a common-law separation?
Common-law couples are not subject to the divorce laws.
Divorce laws are applicable strictly to married couples.
In simple cases where a couple had lived together for a short period of time and did purchase any assets together or incurred liability for the couple, it’s better that way.
However, for common-law couples who have lived a long time together, for many years shared their income, bought property together, made concessions and sacrifices for one another, the separation without the legal protection of the divorce laws can hurt.
For example, common-law couples do not have the right to equally share the family patrimony as the concept of family patrimony strictly applies to married couples.
Common-law couples in Quebec do not have the right to claim spousal support or alimony whereas married couples can.
There are significant differences in how a common-law couple and married couple separate and the legal rights and remedies they can invoke.
A married spouse can get remedy for financial hardship caused as a result of the separation whereas a common-law couple does not have this recourse.
If you want to get into a common-law relationship or get married, it’s advisable to consult a family lawyer to get a sense of your rights and obligations in case you separate down the road.
Nobody wants to separate but there is no excuse not to plan ahead for such eventuality, even if the chances are slim.
Separation agreement for common-law couples
One way common-law couples or de facto couples can settle their separation is to mutually agree on the terms of their separation in a separation agreement.
There are no legal guidelines of minimum requirements to respect as there is no law imposing a separation agreement on common-law couples.
As a result, common-law couples can define the terms and conditions of their separation based on their needs and wants.
If the couple is able to mutually agree, ideally the agreement should be in writing.
If you want the agreement to produce a maximum legal effect, you can submit the agreement to court to have it ratified or homologated.
This means that the court will render a judgment confirming your agreement.
When ratified, your agreement will acquire the same legal value as the judgment of the court.
Disputed separation between common-law couples
Common-law couples unable to reach an agreement on the terms and conditions of their separation may need to go to court to remedy the situation.
Considering they are not married, they will often present civil lawsuits against each other as if they were partners in a business venture, as if they were parties to a contract or parties some sort of a civil relationship.
They’ll need to base their legal recourse on concepts of contract law, unjustified enrichment and legal remedies outside of family law.
Unfortunately, dealing with separation on the basis of contract law and obligations is not ideal and may not provide the best outcome for common-law couples.
It’s best to consult with a family lawyer to understand the difference between separation vs divorce so you are aware.
Where family law continues to apply to common-law partners in Quebec separating is when they have children.
Married couples or common-law couples will be governed by the same rules when it comes to their children on matters such as child support, custody, contact, access, parenting plan and all other legal regimes applicable to children will apply.
Takeaways
In this article, we discussed the concept of separation vs divorce.
Separation can mean a few things.
It can mean the actual separation of a couple or some people may refer to separation “legal separation”.
Legal separation is formally referred to as “separation from bed and board”.
Married couples may separate and choose to stay married or formalize their separation through a legal separation or divorce.
Both legal separation and divorce are similar in terms of legal protection to the couple.
The major difference is that with a divorce judgment, the court dissolves the marriage whereas with a legal separation, the court maintains the marital bond.
For common-law couples, separation only refers to the actual separation of the couple.
In other words, the splitting up of the couple.
When a common-law couple separates, they will not have the ability to invoke the divorce laws or legal separation laws for protection as there are no specific laws governing the separation of common-law couples.
In most cases, common-law couples end up having to invoke contract laws in an attempt to find a legal remedy to their problem.
If you want to understand your legal rights and obligations as a married couple or a common-law couple, we recommend you speak to a family lawyer to guide you on this topic.
You don’t want to end up with a surprise after heavily investing in your relationship.
We hope this article was useful to you.
We wish you best of luck with your decision!
