The difference between separation and divorce
Separation occurs when a couple who have been living together in a spousal relationship decide to end their conjugal relationship and live separate lives. Both married spouses and common-law spouses can separate.
A divorce is a Court order that legally terminates a marriage. Only spouses who are legally married can receive a divorce. A divorce does not happen automatically; one or both spouses must apply to the Court for a divorce order.
There are many practical differences between separation and divorce. If you have questions about your separation or divorce and how it will affect your family, our team of family and divorce lawyers is here to help.
Being separated for one year prior to getting a divorce
In Canada, there are three “grounds,” or reasons, for the court to grant a divorce:
- the spouses have lived separately for at least one year
- cruelty (includes mental and physical abuse).
In order to apply for a divorce, you must claim one of these grounds. Because adultery and cruelty are much more difficult to prove, the vast majority of divorces are granted on the basis of one year of separation.
The idea of waiting for a year to be divorced is unappealing to some people. However, you can start the divorce process whenever you want. You simply will not receive your official divorce order until the year of separation has passed.
Some spouses who decide to divorce continue to live in the same home for practical reasons. Some simply cannot afford to support two households. Others continue to live in the same home to make co-parenting easier or to ease the transition for their children. This time will still count towards your one year of separation.
Do I need to get divorced?
If you are legally married, and you want to get re-married to someone else, then you need a divorce. Otherwise, a divorce is not mandatory. Some married spouses decide to separate and never bother to get divorced.
If you intend to stay married even though you are separated, it is vital that you consult a family law lawyer to ensure that you and your family are protected from any unintended results of your decision to remain married.
For example, when spouses divorce, the law automatically assumes that any provision in a will in which one spouse leaves property to the other spouse is revoked and the will is interpreted as though the beneficiary spouse predeceased the testator. This is not the case for separated spouses. As a result, family lawyers often recommend that spouses redo their wills immediately upon separation.
If you intend to remain married, though separated, you should be aware of the different ways in which staying married might affect your rights.
Can I get a separation or divorce even if my spouse doesn’t agree?
The decision to separate or divorce is a unilateral one. Your spouse does not have to agree.
In order to separate, all you have to do is decide that your spousal relationship is over, inform your spouse, and to start behaving in a way that reflects your decision.
You do not need to move out of the home you share with your partner, although that would be an indicator of separation. Other common indicators of separation include:
- communicating to your spouse that you intend to separate
- sleeping separately from your spouse
- telling others that you are separated
- doing activities that you used to do together separately
- starting to separate property and finances.
If you are married, you can get a divorce even if your spouse doesn’t want one. However, the Court will not grant a divorce until all issues relating to any children have been dealt with. If you have children, how you proceed to get a divorce will depend on whether you and your spouse are able to come to an agreement with respect to decision-making responsibility, parenting time and child support. Contact one of our divorce lawyers to determine the best way to proceed in your circumstances.
Do my rights and obligations change depending on whether I am getting divorced or separated?
When you decide to get divorced or separated, you and your spouse will need to make certain decisions. Whether you are married or in a common-law relationship, your rights and responsibilities with respect to:
- child decision-making responsibility
- parenting time
- child support and
- spousal support
are the same.
The major difference in terms of rights and entitlements between divorced couples versus common-law couples in Ontario are those rights relating to the division of property and the matrimonial home home.
Dividing property at the end of a marriage or common-law relationship
By law in Ontario, married spouses are automatically entitled to an equal division of the value of all debts, assets, and liabilities that the spouses acquired during the course of their marriage. This is known as “equalization” and is governed by Part I of the Family Law Act, R.S.O. 1990, c. F.3. Although married spouses are entitled to keep what they brought into the marriage and receive a credit for those values, the increased value of those assets since the date of the marriage will be accounted for and divided.
This law and entitlement does not apply to common-law spouses. When common-law spouses separate, each spouse generally takes with them the value of whatever property they acquired during the relationship. The only property that would need to be divided would be whatever the spouses own or have purchased jointly. There is a way to claim an interest in property that your spouse owns if you contributed money or effort to its purchase or upkeep, but it can be difficult to prove in court. If your spouse does not agree to the account for or divide property in which you feel you have an interest you should contact a lawyer right away.
Both married and common-law couples can choose to enter into a marriage agreement or cohabitation agreement that specifies a different mechanism for the division of property at the end of the relationship. The law of Ontario provides a default process, but couples may opt in or out of the default equalization mechanism in a way that better suits their arrangements.
Dealing with the matrimonial home
For married couples, the matrimonial home, or the home you lived in during your marriage, receives special treatment under Part II of the Family Law Act. This law does not apply to common-law couples.
When a married couple divorces, they each have an equal right to stay in the matrimonial home. This is the case even if the matrimonial home was owned by one spouse before the marriage and is in that spouse’s sole name. If your spouse owned the matrimonial home before you were married, they do not get a credit for bringing it into the marriage like they would for another property that you do not live in as of the date of your separation.
If you want to learn more about the difference between separation and divorce and how these differences apply to your situation, contact one of our family law professionals today. With offices in London, Chatham, Strathroy, Stratford Kitchener and Sarnia we make it easier for residents across Southwestern Ontario to access legal services.
*Disclaimer: The content in this article only intended to act as a general overview on a legal topic and not act as legal advice. For specific legal advice as it pertains to your legal situation – please consult with a family law lawyer.