Divorce v Separation. What is the difference?

Separation and divorce are terms that are often used interchangeably. However they refer to different things. Divorce ends the legal relationship of marriage. Separation describes the breakdown of any relationship, whether the parties were married or in a common law relationship.

Divorce

You and your spouse must meet the requirements of a divorce, and address any other issues (like child custody, and child and spousal support.) At its core divorce refers to the legal process of making two married people two single people. To be obtain a divorce you must meet one of the following criteria:

  • you and your spouse have lived separate and apart for at least one year, or
  • during your marriage, your spouse has:
    • treated you with “physical or mental cruelty of such a kind as to render intolerable the continued cohabitation of the spouses,” or
    • committed adultery.

Given the legal and emotional difficulty of proving adultery or cruelty, most couples wait for the year to pass and then divorce.

You can only get divorced if you were legally married.   You cannot legally get married again until your divorce is finalized.  Some people separate but never actually divorce their spouse, though this has the potential for causing issues in the future.

Separating & Common Law Relationships

If you were in a common law relationship, you only need to separate to begin another relationship.  You will still need to address the issues outline below.  While you can begin another common relationship as soon as you are separated, though it takes various periods of time for the different rights under a common law relationship to develop. You can also marry immediately after separating.

Beyond Divorce and Separation

Regardless of whether you are married or common law, when you bring your relationship to an end, you will need to address the following related issues depending on your life circumstances:

  • Child custody and support
  • Spousal support
  • Dividing property

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