Separation and divorce are never easy. There is so much uncertainty, and you must make difficult decisions that can have a lasting impact. Understanding legal rights and responsibilities is the best way to remove uncertainty and protect yourself.
In British Columbia, separation laws cover a wide range of issues, including division of property and debt, child support, spousal support, and more. The provincial Family Law Act and the federal Divorce Act are the two main sources of separation laws. Decisions made in previous family court proceedings are another major source of the legal principles that apply when resolving family law issues.
It’s extremely challenging to know all the laws and how they apply in your situation. You don’t have to navigate these challenges alone. Onyx Law Group has the expertise to answer any questions you may have regarding separation laws and your legal rights. Our experienced divorce and family law team is able to assist with even the most high-conflict or complex family law matters. Contact us today for a consultation and let us handle the legal complexities, so you can move forward confidently towards a fresh start.
Today’s post will provide an overview of separation laws, explain the difference between separation and divorce, and the importance of the date of separation. We’ll also discuss whether you need a separation agreement to resolve the issues that arise when a relationship breaks down.
Separation Laws in BC
As mentioned, the primary laws governing separation and divorce in BC are the Family Law Act, the Divorce Act, and case law. The Divorce Act deals with divorce, child support, spousal support, and parental rights and responsibilities (what used to be known as “custody” and “access”). The Family Law Act deals with division of property and debt, guardianship of children, parenting arrangements (parenting responsibilities and parenting time), contact with a child, child support, and spousal support.
The specific law(s) that will apply in your situation depend on whether you were legally married or in a common law relationship. Canada’s Divorce Act only applies to spouses who are or were legally married, while BC’s Family Law Act applies to both married and unmarried spouses (those who have been living together in a marriage-like relationship for at least two years). An experienced family lawyer can help you determine which law applies in your circumstances.
Separation vs. Divorce in British Columbia
There tends to be some confusion about the differences between separation and divorce. The terms are sometimes used interchangeably, but in a legal context they mean different things.
Let’s talk about separation first. There is no such thing as a legal separation in British Columbia. You can’t sign a document or get a court order to be separated. Instead, you become separated when at least one of you wants to separate and you begin living “separate and apart” (see below for more on that). If your relationship has broken down and you’re living apart, you’re separated, whether yours was a legal marriage or a common law marriage.
Now let’s talk about divorce. A divorce order from the BC Supreme Court is the only way to officially end a marriage. In other words, legal proceedings are necessary to get divorced, but not to get separated. Both married and unmarried spouses can be separated, but only legally married spouses need a divorce order to effect legal termination of their marriage.
Legal Requirements for Separation in British Columbia
The date your relationship began and the date your relationship breaks down are of critical importance to several family law issues. Let’s talk about how to determine the start date and separation date.
When Does a Couple Become Spouses?
To gain the status of a spouse in BC, your relationship must meet the definition of “spouse” in the Family Law Act. The definition of “spouse” in section 3 of the Act includes:
- legally married spouses;
- unmarried couples who have lived together in a marriage-like relationship for a continuous period of more than two years; and
- people who have lived together for less than two years but who have a child together (they are only “spouses” for the purposes of claiming spousal support).
For married spouses, the relationship starts on the earlier of the date they got married and the date on which they began to live together in a marriage-like relationship.
For cohabiting couples, it’s of vital importance to understand that you can become a common law spouse automatically by living in a marriage-like relationship for two or more years, without ever having a wedding ceremony. In BC, when you gain the status as common law spouses, you have the same rights and obligations on separation as married couples, including property division rights and the right to claim spousal support.
When Does Separation Officially Begin?
Whether you are legally married or common law spouses, separation occurs when one or both spouses decide the relationship is over (intention), communicate that decision to the other spouse (communication), and then behave as though the relationship is over (action).
In some cases, the date of separation is very clear, for example, the day one or both spouses move out of the shared residence. In other cases, the date of separation is difficult to determine or disputed (e.g., if the break-up was a gradual process; if you’ve had periods of reconciliation). When the date of separation is disputed, the court will look at factors including (but not limited to):
- when the spouses began living apart in separate residences;
- when they stopped having sex or a romantic relationship; and
- when they began living independent lives from a financial and social perspective.
Emails, text messages, letters, income tax returns, bank records, and social media posts are the types of evidence that may be needed to determine the date of separation where the spouses can’t agree.
You may now be wondering: can separation occur if we’re still living under the same roof? Many couples choose to continue to live in the same residence for the sake of the children, or because they can’t afford separate residences. Whatever the reason, BC law recognizes that spouses may be separated despite continuing to live under the same roof. If your relationship has broken down and you aren’t going to have separate residences, it’s extremely important to be clear on the date you separated and to behave as though you are separated and living independent lives.
Why the Start Date and Separation Date Matter
The date the spousal relationship began and the date spouses separate are very important, whether you are married or common law. Those dates impact what qualifies as family property and how much family property and debt is worth. It also triggers entitlement to claims for child support and spousal support.
Division of Property and Debt
The general rule in BC is that family property and debt are divided equally after separation (but spouses can agree otherwise by entering a prenup or cohabitation agreement). Assuming there are no marriage or cohabitation agreements, that means any property and debt acquired from the start of the relationship to the date of separation is family property subject to equal division. Property and debt brought into the relationship is excluded property, and only the increase in value of excluded property over the course of the relationship is subject to equal division.
Separation Date Also Impacts Divorce Process
If you are legally married, the date of separation is important for another reason: it impacts when you can get a divorce order. Divorce in Canada is a “no-fault” system, which means neither spouse needs to prove fault. Instead, you must demonstrate that your marriage has broken down. There are only three grounds in the Divorce Act for establishing marriage breakdown: one year of separation, adultery, and mental or physical cruelty.
Even if your spouse committed adultery or was abusive, it’s very rarely recommended to proceed using either of those grounds. Adultery and cruelty must be proven by evidence in court. To avoid the necessity and expense of a trial, most separating spouses choose to live apart for a year and apply for divorce on that basis.
When relying on one year of living separate and apart as the grounds for your divorce, you can start your divorce application in British Columbia any time after you separate, but the Supreme Court will not grant a divorce order until you and your spouse have been separated for at least one year. As such, your separation date determines your eligibility to get a divorce order.
Do You Need a Separation Agreement?
You don’t need a separation agreement to legally end a marriage or a common law relationship. However, many separated spouses opt to negotiate family law issues out-of-court and prepare a separation agreement. Flexibility and control are two major advantages of separation agreements. As long as you both agree, you can settle outstanding family law issues in any way you choose.
A separation agreement can be used to resolve issues including:
- Asset Division (how to divide property and debt)
- Child Support (how much, who pays, how it is enforced if not paid, contributions to special and extraordinary expenses)
- Spousal Support (mutual waiver of spousal support claim or agreement as to eligibility, amount, and duration; lump sum vs. periodic payments)
- Co-Parenting Responsibilities (parenting time, decision-making responsibilities)
What if You Don’t Have a Separation Agreement?
The main alternative to negotiating a separation agreement is bringing a family court case, asking a judge to resolve matters in dispute for you. Unresolved issues such as property division, child custody, and support issues will be decided by a judge based on BC case law and family law. The outcome of your case may not line up with your preferences.
Do You Need a Lawyer for Separation Agreements?
Agreements can be prepared by separating spouses without legal help, but they may miss vital issues, receive less than their fair share of assets, or wind up with uncertainty about responsibilities that leads to protracted legal disputes down the road. Worse still, if a separation agreement is not properly prepared or fairly negotiated with full financial disclosure and independent legal advice before it is signed, it may not be enforceable and can be set aside by the courts.
The best way to draft a separation agreement is with legal help. Protect yourself by consulting with a dedicated family lawyer at our law firm before you agree to anything. Your lawyer can ensure you understand the applicable laws and that you have received full financial disclosure, both of which are essential to the question of whether a proposed agreement is fair.
Looking for an Experienced Family Lawyer in BC?
Separation laws and the divorce process in BC can be overwhelming and extremely difficult to navigate without help from an experienced lawyer. One of our BC family lawyers can help you evaluate your options and make wise decisions, tailored to your needs, goals, and circumstances.
At Onyx Law Group, we use our detailed knowledge and years of experience to find creative approaches to complex legal situations. From our offices in Vancouver and New Westminster, our team of experienced lawyers work with clients throughout the Lower Mainland, and across the rest of British Columbia, to navigate even the trickiest aspects of personal disputes.
Our goal is to help you achieve a positive outcome that allows you to confidently move forward in your life. Contact us today!