Know the Difference: Legal Separation vs. Divorce

 If you are thinking about leaving your spouse – or if your spouse has left you – then you may be wondering about the difference between separation and divorce. In many cases, there will be a separation first followed by a divorce – although separation in itself doesn’t necessarily mean that a divorce will follow. Sometimes couples will separate for a period of time to see if their marriage can be reconciled. 

Nevertheless, it is important for couples to understand the difference between separation and divorce, because legally they are quite different. 

Separation

Separation happens when one spouse intends to live separately from the other. For a separation to occur, the parties often live in different homes, but not always. It is possible to be separated and still living under the same roof. Doing so is difficult, but for some couples it is possible. 

In order to determine if a couple is separated and living under the same roof, the legal community will look at a variety of factors including whether the couple still shares a bedroom, engages in sexual relations, whether they socialize as a couple, and whether they share meals, chores, etc. 

Separation is something that either spouse may initiate on their own without the help of a lawyer or the courts. It is something that happens when the relationship breaks down. 

When a separation happens, there are certain issues that should be addressed immediately. These issues include the dividing of assets as well as financial support. If there are children from the relationship, you will also have to make decisions concerning child support and parenting schedules. 

In order for these decisions to be legally binding, you and your spouse should negotiate a separation agreement. This is a legal contract that is drawn up with the help of your family lawyer (each spouse should have their own lawyer). If the two parties cannot agree, you may need to go through arbitration or to obtain a court order. Your separation agreement will outline how each issue is to be resolved as well as how future issues should be dealt with. 

Divorce

Unlike separation, divorce is something that usually takes much longer to resolve. Unless there has been abuse or adultery, spouses are required to wait at least one full year from the date of their separation before they may apply for a legal divorce. Despite the passing of a period of one year,  if there are children from the relationship, then the divorce will not be granted unless you can satisfy the court that arrangements for the children’s care and financial support have been taken care and needs met. 

Once a judge signs the divorce order, the couple is considered officially divorced after a period of 31 days. At this time, the spouses are no longer legally married and they may apply for a divorce certificate. This certificate acts as proof of divorce in the event that either or both spouses wish to re-marry. 

Another difference between separation and divorces is that all couples – whether married or common law may separate, while only legally married couples can divorce. 

Contact Minhas Lawyers today

Are you considering a separation or divorce from your spouse or has your spouse filed for divorce? If so, it’s important to have a family lawyer on your side to protect your rights and interests. Contact Minhas Lawyers today to learn more and book a consultation!