Divorce or Legal Separation: Which is Better for BC Families?

Most people understand what divorce means, but are less certain when it comes to legal separation.

Deciding which option is better for separating couples in BC requires an understanding of the key differences between them and the main implications of each option.

When all is said and done, if you want to separate but remain married (for whatever reason), legal separation may be the favorable option. However, for couples who no longer want to be married and aim to “move on” with their lives independently of each other, divorce may be better for BC families.

Let’s examine each option a little more closely to help you decide.

Divorce vs legal separation in BC

To file for divorce in British Columbia (or anywhere in Canada), you must cite one of the three legal grounds for divorce: an irretrievably broken marriage, cruelty or adultery.

If you cite a broken marriage, you will need to have been separated for 12 months before you become legally divorced. This separation arrangement is different from legal separation, where a couple chooses to remain married but separated indefinitely, but from a legal standpoint, it is no different, as we shall see below.

Sometimes, the 12-month separation period is used to settle differences and the couple reunites permanently. Otherwise, the period can be used to prepare for divorce. Sometimes, though, couples decide that legal separation would be better for the family than divorce. This is generally more common in marriages with children.

The divorce process

Divorce is a clean break that always involves court intervention. You need to file for divorce through the local courthouse and must meet the B.C. residency requirements before the divorce will be processed.

You will need to resolve the following key issues with your spouse:

• Division of assets/debts
• Spousal support
• Child custody and parenting
• Child support

A Justice must sign the divorce judgment that finalizes the breakup. The process takes at least 3-6 months before a certificate of divorce is issued. There are many legal implications with this decision.

The legal separation process in BC

Legal separation, on the other hand, is less clearcut, does not need to pass through the BC courts and generally has different implications for finances and relationships.

There is no “fling for separation” in British Columbia. In fact, from a legal standpoint, there is no distinction between a pre-divorce separation and a so-called “legal separation. No court appearance is necessary, the Justice does not need to sign anything and no final certificate is issued.

Couples who consider themselves legally separated may want to formalize the arrangement with a legal separation agreement but this is not a legal requirement. They may even announce the decision socially with friends and family. But in the eyes of B.C. law, you will still be married and must face the legal consequences of this decision. These include supporting each other and the children and remaining responsible for taxes and debts the same as if you were married.

Even if one of the parties does not agree to the separation, the couple is still considered “separated” if one of the partners takes steps to live an independent life.

Most separated couples live in separate accommodation but this is not a legal requirement. If you remain under the same roof as your spouse (usually done primarily to save money and/or for the sake of the children), you will be recognized as separated by the courts if you live independent lives and have communicated this to each other.

“Living separate lives” includes:

• Sleeping in separate rooms
• Eating separately 
• Keeping separate finances
• Living social lives apart
• Performing separate household chores

Note that the decision to remain married also prevents either party from marrying anyone else.

Key differences between separation and divorce summarized

The main differences between a separation and a divorce include:

• To initiate a divorce, filing paperwork is necessary, while for a separation, a separation agreement is needed to formalize the legal separation.
• You may need to appear before a Justice in divorce but this is not necessary for a separation.
• A Justice needs to sign a divorce decree but does not need to sign anything for a separation.
• Spouses can reunite and remain married after a separation but a divorce is final.
• A divorce becomes final 31 days after the BC Supreme Court grants a divorce order (if no appeal has been filed) but a separation date can be disputed by either party.
• You cannot get married to someone else while you remain married but after a divorce is finalized, you are free to marry again.

Financial considerations

Besides thinking of the children, the other main consideration when weighing up the pros and cons of divorce vs. legal separation is the financial consequences.

Remaining married but living permanently apart may confer the following financial benefits:

• Health insurance benefits: if a spouse receives health insurance benefits, he/she may be reluctant to give these up by getting divorced.
• Retaining military benefits: if a couple receives significant military benefits from their service that are stopped if they divorce, legal separation may be a more attractive option.
• Tax benefits: you may not want to pass up the tax benefits from remaining married and filing tax returns jointly.
• Saving everyday costs: getting divorced usually means running two households, which usually increases expenses; remaining separated and living in the same house can be a better financial option for some people.

The financial implications of divorce should be discussed with a divorce lawyer if you are considering separating from or divorcing your spouse.

What is a legal separation agreement in BC?

A legal separation agreement is a contract that formalizes the separation between spouses or partners in a common-law relationship.

If it is prepared correctly by a qualified lawyer and signed by both spouses or partners, it will be a legally binding document that provides both spouses with peace of mind that the main issues and risks are covered if they do decide to get divorced. It is important to note that the ‘qualified’ lawyer must provide a certificate of independent legal advice to formalize a certified separation agreement.

What needs to be addressed in a legal separation agreement? 

A separation agreement often becomes the precursor for a divorce and is the main document to guide the couple in drawing up a divorce agreement when addressing the key issues.

It’s important not to put anything in writing that may count against you later. Talk to a divorce lawyer about the key matters, such as:

• Property/debt division including the family home: assets and debts must be divided fairly
• Spousal support: normally, support is paid from the higher-earning spouse to the lower-earning spouse for a period of time.
• Child support: the obligation for both parents to financially support the needs of their minor children.
• Parenting matters: these must be resolved in the best interests of the children.

Contact an experienced divorce lawyer

There’s a lot to think about when separating from a long-term partner. DSG Family Law offers a free initial consultation with a divorce lawyer in Langley. We can discuss your situation and outline the legal options available to you.