What Is The Difference Between “Legal Separation” and “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 a relationship long enough to have a common-law spouse. It is possible for a person to have a married spouse and a 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 about what it means to be common law, watch the video below.

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 the 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 separately and apart for a year. Once a court grants a judgment for divorce, the spouses are divorced on the 31^st day after the judgment.

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 religious 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?

Under Ontario’s Family Law Act, a separation occurs when 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 separately 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 separately and apart – think of those in military service who are stationed abroad.

Also, living separately 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 yourself, 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.

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 Kindle, Kobo, 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 get out of trouble but succeed on all 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.

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 ahead of your spouse and will allow you to come out 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).

Judges can also refuse to grant a divorce if the judge believes there has been “collusion” or “connivance” by the spouses – essentially the spouses are working together to get a divorce improperly. However, these are not things a spouse could raise to block a divorce.

If a judge is satisfied that the grounds for divorce exist and adequate provision for any children has been made, they will grant a divorce judgment. Once thirty days have elapsed from the date of judgment, the spouses will be legally divorced.

While you do not need a family lawyer to apply for a divorce, it is always advisable that you speak with a good, experienced, family lawyer before proceeding. A family lawyer can help you arrange your affairs so that a divorce can be granted more expeditiously and avoid the many pitfalls and obstacles that can slow the process. Contact Certified Specialist in Family Law (and author of the book to the left), John Schuman, by emailing him, calling 416-446-4036, 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).

To learn even more about divorces, and how to get one, 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 Kindle, Kobo, 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 get out of trouble but succeed on all 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.

Under s.19(1) of the Act, each spouse has an equal right to possession of the home. That means that your spouse cannot unilaterally kick you out of the house, even if they are the sole owner. This extends to changing locks, removing belongings, etc. It also prohibits struggles like selling the house or increasing the mortgage to force the other married spouse out. A spouse is prohibited from employing any of these self-help measures; they can only do it by order of the Court. Under s.24, the Court has the power to deal with the property contained in the home, such as by making orders for the preservation of the property or the delivery of the property to a person.

If your spouse wants to evict you or prevent you from having possession of any matrimonial home, they will have to bring a motion for an order for exclusive possession of the matrimonial home under s.24(1) of the Act. The criteria for making these orders are contained in s.24(3) of the Act. An order for exclusive possession is an extraordinary remedy and is only granted in very clear cases. Judges do not like to kick a spouse out of their house unless circumstances compel it, such as where there is clear evidence of abuse or where it is in the best interests of the party’s child(ren) that the court makes such an order. Where the matrimonial home is a secondary property (a family can have more than one matrimonial home), such as a cottage, a judge may be less concerned about such an order ‘putting you out on the street’, your spouse would nonetheless have to convince the court that such an order is necessary.

For your husband to bring a motion for an order for exclusive possession, he will have to start a court proceeding. There are no legal, out-of-court means to force a spouse to give up possession of the matrimonial home (except for family arbitration where the arbitrator acts like a judge). You should listen to these podcasts (Part I, II, III) where I explain the family court process in Ontario and what to expect when litigating a family law issue. Watch the video on the family court process below. He may start a proceeding and then bring the motion on notice to you or, if she believes that circumstances are urgent, she may start a proceeding and bring the motion immediately without notice to you. If your spouse has contacted a family law lawyer, it is best that you do so as well, and sooner than later. A good family law lawyer will be able to explain your rights and obligations to you and how best to protect yourself through the end of your relationship.

As your spouse has illegally changed the locks, you can ask the Court for an order for possession of the house. In circumstances where one spouse is clearly denying the other spouse the right to possess the house, a judge may order that you have exclusive possession of the cottage, as there is no evidence that you (unlike him) would prevent him from possessing the house. You should speak to an experienced family law lawyer right away, as it is important to make these claims as they arise and not wait to go to court. 

If you are in a common-law relationship, read this page for information about your rights with respect to your family home.

To learn even more about your rights and obligations regarding the matrimonial home, you may want to 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 Kindle, Kobo, or iPad/iPhone/Mac. You can also use the search on the right to find lots more articles about marriage and divorce.

If you are being threatened with being kicked out of your home, especially if those threats are accompanied by other threats or violence then you need to speak with a good, experienced, family lawyer immediately. A family lawyer will protect your rights and make sure you do not get into a bad situation that will be difficult and expensive to correct. 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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