It’s tough when a marriage or common-law partners breaks down and the parties decide to separate.
How do we define separation between spouses/partners in Canada?
Separation is defined as when a couple decides to live apart from each other because the relationship has broken down. The couple may be married, or they may be unmarried but living together like a married couple in a common-law relationship. Usually it’s sufficient for just one person in the relationship to decide to end it.
Is there such a thing as legal separation in Canada?
Family law falls under provincial and territorial jurisdiction. So, the question of whether there is such a thing as a legal separation may be different for each province or territory.
In most provinces and territories, there is no such concept as “legal” separation. However, there is an agreement called a “legal separation agreement”, which is a legal contract enforceable under law.
However, separation in itself can be used legally as grounds for divorce in most provinces/territories in Canada if a separated couple wait out the minimum required period.
One year separation period
This period only applies if couples are married. In most provinces/territories, if you and your spouse have been separated for more than a year, you may file for divorce.
However, you can file the application for divorce on the same day that you are separating but you will not be granted the divorce until the minimum one year period has passed.
If you want to file for divorce, but you have been separated for less than a year, but you want the divorce granted quickly, then you will either have to wait until the minimum one year period has been reached or else file on another ground.
What happens if we briefly reconciled during the separation period?
Whether that has any impact on the period you have been separated depends on how long you reconciled. In many provinces, the period for which you are allowed to be reconciled without disturbing the separation period is 90 days.
This period is cumulatively calculated. That means if you got back together several times, all those times get added up for a total accumulation of days. If that goes over the 90 days, then you have to re-start the one year separation period if you are using separation as a ground for filing for divorce.
Even if you only reconciled one time but this one time went over the allowable time limit, you will have to restart the separation period.
It is advisable to consult with your provincial or territorial act that applies to your situation in regards to allowable reconciliation periods, or else ask a lawyer in your province or territory.
This agreement is a voluntary agreement between the parties who are separating. However, once a separation agreement is drawn up, it usually is legally binding on the parties.
The agreement usually contains a provision of how things are going to be divided between the parties. Usually the issues that are addressed by this agreement are issues surrounding children and spousal support, property division, debts and assets and more.
It’s a good idea to consult a lawyer in regards to separation, whether a couple were common-law spouses or married.
About Divorce and Separation Government of Canada
Separation and Separation Agreements British Columbia