Last month we explored the difference between a divorce and an annulment of marriage so it makes sense to now address the question of divorce versus separation.
First we will look at the similarities. Both involve a certain rupturing of the marital life of a couple and end the obligation to live together. Both can result in an order for spousal support if the circumstances justify it. And in both cases, the rights and duties of fathers and mothers towards their children are unaffected, so child custody, visitation, and support are also important parts of the court order that will pronounce either the divorce or separation.
Of the two, divorce is the more difficult to obtain, and the more permanent. According to the Canadian Divorce Act, a province can have jurisdiction to pronounce a divorce if at least one of the parties has been living in the province for at least one year prior to initiating proceedings. To obtain a divorce, you have to allege sufficient grounds, such as cruelty or infidelity of the other spouse. If you want a ‘no-fault’ divorce, you can apply for a divorce based on having lived separate and apart for at least one year. Once you are divorced, your property will have been divided and you will both be single individuals.
A separation is easier to obtain. Note that you can always get ‘physically’ separated by having one or the other person move out. This is what we call a de facto separation. If you want to go the next step and get an actual de jure (“legal”) separation, then you have to state in an application to the Court that you no longer have the will to live with your spouse. According to the Civil Code of Quebec, there is no minimal residency requirement and there are no other preconditions. The Court will issue orders with respect to support, custody, visitation, and possibly separation of some or all assets.
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This is one of the reasons that separation is the rupture of choice for people who have recently moved to Quebec (or back to Quebec) and do not yet meet the one-year requirement for a divorce. You will, however, still be legally married and will still have certain marital obligations and rights. This can also be advantageous for those who are not yet certain that they want to end the marriage. Since your marriage will still be in effect, putting an end to a separation is as simple as just moving back in with one another.
Please do note that there are an infinite number of strategic reasons for choosing one over the other. In one of our cases for a family of foreign nationals, the parties wanted to divorce, but after careful legal consideration, decided that it would be best to start with a separation so as to avoid visa problems for the unemployed spouse and so that all the members of the family could continue to benefit for a while longer from insurance coverage provided by the employer.
After three years of legal separation, the couple finally divorced when the circumstances were more conducive to this more complete rupture. It is imperative to weigh a large number of factors carefully before making such an important decision.
Daniel Romano is an attorney with KALMAN SAMUELS, a family law firm. Next issue we will address the challenge of Executing foreign judgments.
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