I often have clients asking about how they can obtain a “legal” or “judicial” separation. Well, for starters, I tell them there is no such thing as a legal or judicial separation in Canada. In British Columbia, if you are married or in a common law relationship, you are considered to be separated as soon as you and your spouse or partner start living ‘separate and apart”. You do not need to apply to the court to be separated. In fact, you don’t even need to both agree to the separation. One partner can decide the relationship has ended and begin living separate and apart.
I advise clients to communicate the intention to live separate and apart verbally to the other spouse or partner and follow up with it in writing, especially if the decision is not mutual. The separation date will be important when it comes time to file for divorce because under the Divorce Act, you must live separate and apart for at least one year before you can obtain a divorce, with the exception of cases involving adultery and cruelty. The date of separation will also be important with respect to the division of property and spousal support.
Usually separated spouses or partners live in different homes, but the courts have recognized that it is not always financially feasible to live in different homes and therefore will look at the particular circumstances of those parties living under the same roof. In this type of scenario, the courts will require the parties to prove that while they resided together under the same roof, they were not living together as a couple.
The Divorce Act encourages couples to work things out before a divorce is granted. It provides couples with up to 90 days where they can live together and resume their relationship. If they resume their relationship for over 90 days, however, the couple will be required to begin a new full one year separation period before a divorce can be granted.
If you are considering separation or have recently been separated, it is a good idea to speak to a family law lawyer to learn of your rights and obligations.