What Is The Difference Between “Legal Separation” and “Divorce”

Divorce

“Separation” and “ “Divorce” are obviously two very important concepts in Family Law and in the Family Courts.  They are not the same thing. To the contrary, the two terms have very different meanings, each of which is important. For spouses who are facing a breakdown of their relationship, it is important to appreciate the difference and how it can affect your rights and obligations.

What is a Divorce?

A divorce is a declaration made by a court that formally dissolves a marriage. From a legal perspective, all a divorce means is that the spouses are no longer married, which means they can get married again.  That is all being divorced means.  Married spouses who are separated and are not divorced cannot remarry.  Some people who are separated never get divorced because they never intend to remarry.  However, not getting divorced also has other legal significance.  Separated, but not divorced, couples  cannot sell, mortgage or encumber a matrimonial home without their married spouse’s consent.  This does not change if a married spouse cohabits in an a relationship long enough to have a common-law spouse.  It is possible for a person  to have a married spouse and common-law spouse at the same time if that person does not get divorced.  To find out more about the “meaning” of divorce”, listen to this podcast.


Common law spouses do not get divorced because they were married, and therefore have no need for an order saying they are no longer married.  To understand more what it means to be common-law,  watch the video below.



Ontario Family Law Podcast

1 - Separation and First Decisions

3 - What is a divorce? How do I get one?

In Canada, spouses are eligible for a divorce after the occurrence of one of three triggering events: adultery, cruelty, or living separate and apart for more than one year. Once a court is satisfied that one of these events has occurred, a spouse is entitled to a divorce, even if their spouse does not consent. In practical terms, most spouses are divorced after living separate and apart for one year. Adultery and cruelty are very hard to prove and these claims would most likely require a trial for their resolution. Given that it would take the average case more than a year to reach a trial, most spouses divorce on the basis of living separate and apart for a year. Once a court grants a judgment for divorce, the spouses are divorced on the 31st day after the judgment.

14 - Family Court Step by Step - Part 1 - Starting and Responding to Family Court Proceedings

An Application for divorce can be made by either spouse, and does not have to be done with the consent of the other.  Listen to this podcast on how to start a Divorce Application in Ontario. However, before a Canadian Court will grant a divorce, it must satisfy itself that:


  1. reasonable arrangements have been made for any children of the marriage, taking account of the Federal Child Support Guidelines;
  2. the parties have removed any religions barriers to remarriage over which they have control;
  3. at least one of the spouses has lived in the Court’s jurisdiction for at least one year; and
  4. the partners have not engaged in connivance or condonation in relation to the Divorce.


What is a Separation?

Separated couple


Under Ontario’s Family Law Act, a separation occurs where spouses live separate and apart with no reasonable prospect of resuming cohabitation. This is a legal test.  It does not require any form of document or a court order.  What is required is that an objective observer would say that the spouses are no longer living together as spouses, but are living their lives as separated – and they have ended their spousal relationship.  Being separated does not depend on whether spouses are physically separated or not. Spouses can live separate and apart and physically live in the same house, for instance if neither spouse can afford to move out. Likewise, spouses can live in different countries and not be living separate and apart – think of those in military service who are stationed abroad.


Also, living separated and apart does not have to be a mutual decision.  One party can announce the marriage is over, or walk out of the house, or stop behaving like a spouse.  Once it is clear that has happened, the parties are separated, even if the other spouse does not want to separate.


When a Court assesses whether spouses are ‘separate and apart’, it will look at a number of factors – no one factor is determinative. The Court will look at such factors as:

  1. Whether the spouses occupy separate bedrooms;
  2. Whether the spouses continue to have sexual relations;
  3. Whether the spouses hold themselves out to the community as a couple;
  4. The degree and quality of communication between the spouses;
  5. Whether the  spouses eat meals together as a family;
  6. Whether the spouses engage in joint social activities;
  7. Arrangements regarding traditionally shared expenses;


Unlike divorce, both married and non-married spouses can legally separate. Once spouses are separated, they can make claims for spousal support and child support (if there are children). However, only married couples can make a claim for an equalization of net family properties – common-law spouses have to rely on equitable claims to establish a claim to any proprietary rights. When spouses separate, it is recommended that they settle their affairs through a separation agreement or court order. This will allow spouses a degree of certainty and predictability  in planning their affairs on a go-forward basis. It is always recommended that you speak with an excellent family law lawyer to determine what is the best course of action to ensure that your separation or divorce is as smooth as possible.


Once you are separated, it is important to do the right things to protect your self, and your children, and set yourself up properly for your “new life”.   For a list of the first things to do after separating from your spouse, watch the video below and read this page.


  

Book - Guide to the Basics of Ontario Family Law

To learn even more about how to properly deal with the consequences of the breakdown of a relationship, including what to do, what not to do, how to protect yourself and your kids, your options and what steps you need to take, get a copy of this easy-to-understand book on the basics of Ontario Family Law as a paperback, or as a $9.99 e-book for KindleKobo, or iPad/iPhone/Mac. That book will guide you throughout the separation and divorce process, giving you the information you need to know and tips to not just say out of trouble but succeed on all the legal issues - in or out of court.  You can also use the search on the right to find lots more articles about marriage and divorce.

iBookstore_140x70
Guide to the Basics of Ontario Family Law Available on Kindle


After separation, it is always better to keep your emotions in check and act reasonably and strategically, not impassively.  Doing that can keep you far head of your spouse and will allow you to come off the better in your separation  To make sure you do the right things, you really should discuss your particular case with an excellent family law lawyer.   Contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-5847, or using the contact form below.  We answer all inquiries promptly and we can arrange for you to come in quickly for a consultation (charged at a reduced hourly rate).


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