Often people ask whether there’s a difference between being separated or divorced – or whether it even matters. Let’s take a closer look.
Let’s start first with separation – what does that mean?
Separation occurs when two people who are married or living together in a conjugal relationship wish to end their relationship.
There is nothing specific that needs to be done to be considered “separated” – it’s more the state of the relationship being over – there’s no court application that needs to be brought or declaration that needs to be made to go from a state of being together to being separated.
Having said that, there’s often things that need to be negotiated soon after a separation happens – things like
- dividing up assets & debt
- the finances – like spousal support and if there’s children then child support as well
- and of course all the issues around parenting like scheduling, decision-making, and more.
Do you have to be living in two homes to be considered “separated”?
Separation can certainly be solidified by physically moving into two homes, but it’s not necessarily the only way to be considered as separated. Spouses can be separated while living under one roof too.
If spouses want to divorce, most often the “no fault” provision of the Divorce Act will be used – which is you need to prove to the Court that you have been living “separate and apart” for 1 year.
There’s a long list of ways to prove that spouses are separated even though they’re in one home – I’ll list a few to give some examples:
- Separating out your bedrooms
- No longer socializing together
- Being open about your marital status with friends, family, and even with kids
- Parenting separately
- Separating out finances
- Even sexual relations or the absence thereof can be a factor
It’s more so about putting all the factors together to determine whether you’re able to consider yourselves as separated while under one roof.
Next let’s turn to divorce – how is that distinguished from separation?
Divorce is the legal act of no longer being married spouses
There’s 3 steps to finalizing the divorce.
The first step is filing the actual claim for divorce itself – I describe this as opening the court file.
The second step is the Judgment itself which involves filing documents with the Court where a judge will sign your paperwork to grant the divorce itself. It doesn’t necessarily involve physically attending court.
There may be a need to go to court if spouses need a judge to decide for them on any given topic relating to their separation, but in the event that everything is agreed outside of court through negotiation processes like Mediation, Collaborative Divorce, or settlement-focused divorce, then the divorce itself is what we call a “desk divorce” which is where everything is simply sent in to the court for issuing, and is sent back all signed by a judge.
The third step is the Divorce Certificate which is issued 31-days after the Judgment takes effect – this ends the appeal period and causes you to no be longer spouses, officially.
How does someone know which one they want to do – either to separate or to divorce
I always encourage spouses to worry first about separation, and move to divorce when it’s time for that. There’s reasons why a person may want to file court paperwork to start the divorce process rolling, but the actual topics to be negotiated do not need to be done through the courts.
In order to grant a divorce, the court will need to know the details of the arrangements you’ve made with your spouse for the kids, the finances, and property division.
That’s why I always have families focus first on the substance of the issues to be resolved, then once completed, we worry next about requesting that the court end the marriage by issuing a divorce. I see that as the very final step for most families.
Henka Divorce Law & Mediation is a Collaborative Law and Family Mediation firm that helps families thrive as they transition to separation, divorce, or cohabitation. Understanding that every journey is different, we guide families through the right legal or mediation process that fits their unique situation.
Our client service is built on three pillars – focusing on the future, nurturing and supporting children, and working together towards well-being. This includes considering everyone’s needs throughout the process. We work closely with families to provide a meaningful and fair resolution, while keeping costs down by staying out of court.
We serve families in Alberta and Saskatchewan, Canada through their separation or divorce by providing in-person and virtual Collaborative Law or Mediation services.
With extensive knowledge in matrimonial law, our founder Stephanie Dobson uses a caring, results-focused approach to help parents navigate a family separation or divorce while they connect with and support their children. Learn more about her approach and credentials.