What separating couples should know

This article takes a look at what it means legally in British Columbia when a married or common law couple decides to separate.

There are some important things for a couple to think about when they decide to separate. Separation, in the best of circumstances, is stressful, and once the soon-to-be former spouses or common law partners work through the emotions associated with a breakup, there are things they should know about the legalities regarding their split.

Time limits on when you have to start a family claim are different depending upon whether a couple is legally married or living in a common law union. In either case, however, both partners do not have to agree on the separation. It's enough for one individual to say that the relationship is over.

Divorce can happen after one year

If a couple is legally married, they can divorce after one year of living apart (possibly in the same residence). They can, however, file divorce documents immediately upon separation, but the court won't grant a divorce until individuals have been living apart for one year or more. If a married couple or one spouse wants a divorce to be granted quickly, then he or she must use grounds other than separation, such as adultery or physical or mental cruelty, if these grounds are available.

There are some other pertinent facts to know about during the year of living separately:

  • British Columbia will allow a married couple to attempt to reconcile for no more than 90 cumulative days without having to restart the one year separation period.
  • If a married couple reconciles for more than 90 days -- either all in one streak or accumulative -- the one-year period begins all over again to qualify for a divorce on the grounds of separation.

What about a separation agreement?

British Columbia does not have legal separation status for couples. But, the option couples do have is that of a separation agreement, which is a legally binding contract. There is nothing that says a couple must have such an agreement in place, but it will clarify the issues to be resolved and detail the final agreement between the spouses.

Some things a separation agreement can speak to are:

  • how the couple plans on dividing property, such as financial assets, pensions and the family residence,
  • how debts will be paid,
  • issues regarding children such as child support, child custody and guardianship, parenting arrangements, parental responsibilities and access, and
  • spousal support.

It is prudent for spouses who are either married or in common law relationships to seek legal counsel upon separation in order to gain a clearer understanding of the legalities surrounding their separation and the options open to them to resolve their issues. An experienced lawyer can help clients better understand how the law pertains to his or her unique familial situations and can help draw up a separation agreement that protects a client's best interests, now and in the furture.