In daily conversation, using the terms divorced or separated may convey a similar meaning, but they don’t have the same status under the law. Understanding the technical difference between separation and divorce is important because it might impact your ability to access various benefits under the law.

What divorce means

The term divorce only applies if you are married. If you are not legally married in Canada or another country, you do not need a divorce to part ways.

You are not divorced from your spouse just because you have stopped living together or have divided all your assets, or have agreed that you are no longer a couple.

In Canada, only the court can grant a divorce. The process starts by filing a court application called a petition for divorce. Under the Divorce Act, a person applying for divorce must meet specific conditions. These are the two that apply to most:

  1. The spouses must have lived separate and apart for at least one year; and
  2. There must be reasonable arrangements for support for any children in the marriage.

There are legal principles that apply to each specific condition above. For example, living separate and apart does not necessarily mean you and your spouse need to reside in individual residences. Similarly, living in different homes is not sufficient if residing separately is due to work or employment purposes. There are also limited exceptions to this last condition.

Likewise, for the second condition, the spouses must satisfy the court that they have made “reasonable arrangements” of support for any children.

You do not need a divorce to finalize your separation. However, you do need a formal and legally binding document called a separation agreement to formalize your separation. A separation agreement addresses the intention of you and your spouse to live separately and independently and specifies how you will divide your property along with the financial obligations of each of you. You should retain legal counsel and have them assist in drafting the separation agreement to ensure it is legally binding and that you have both entered into the agreement fully informed. 

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You do not need a divorce to have a separation agreement. However, unless there is already a court order for support, you will need a separation agreement to apply for divorce, particularly if there are children in the marriage. You do not need to wait for one year to have a separation agreement in place, but you do need to wait a year after your separation to apply for a divorce.

Once a divorce is granted, any marital property claims expire after 60 days. This means you should have all your property claims resolved before applying for or agreeing to the granting of a divorce.

The above is why it is essential to have a properly drafted and signed separation agreement before divorcing. Once you have a separation agreement in place, finalizing the divorce is just a procedural process that allows you to remarry. Even after the divorce, a legally binding separation agreement continues to govern.

What separation means

Being separated applies to all married and common-law couples who are no longer representing themselves as a couple due to the breakdown of their relationship.  

If you’re married, the separation itself does not end or absolve your and your spouse’s financial responsibilities resulting from the relationship. Termination of property claims occurs either by way of a separation agreement or divorce.

If you are not married but living together as intimate partners, the law considers you common-law partners if you have lived together for at least three years or one year if you have a child together.

Common-law partners do not need to apply for a divorce and are considered legally separated if they have lived separately for at least three years. Once you are considered legally separated, all property claims under Manitoba law are considered expired. Common-law couples should make a court application or have a separation agreement in place before the three years expires.

If you registered your common-law relationship with Manitoba Vital Statistics, you must register the relationship’s dissolution to terminate your common-law status (though you must live separately for at least one year first). If you registered your common-law relationship, the three years expiration of property claims does not apply. Still, you should have your division of property resolved before registering the dissolution of the relationship.

Whether married or common-law, all persons experiencing a relationship breakdown are considered separated and should have a separation agreement outlining the care of any children and their respective financial obligations.

chau tran imageBy Chau Tran

If you have questions about this post or separation and divorce in general, please contact me.