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What is Legal Separation: Understanding the Basics

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Published by:

Sarah Chen

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Reviewed by:

Alistair Vigier

Last Modified: 2023-08-21

Questions about separation can be stressful. Approximately 9 percent of the Canadian population 15 years of age and older are either divorced or separated.

When couples decide to split up, divorce is one option, but one or both parties might not be ready to terminate the marriage.

Separation offers an alternative to divorce, but it is important to understand its legal implications before you decide that it is the right option for you. Here are the answers to seven of the most common questions asked by people contemplating a separation.

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Common questions and answers

Separation refers to a situation in which a married couple lives apart with the intention of ending the marriage.

What is the difference between separation and divorce?

Separation refers to a situation in which a married couple lives apart, while divorce refers to the legal end of a marriage.

What is a legal separation?

A legal separation is a court order that mandates the rights and duties of a couple while they are still married but living apart.

How do you obtain a legal separation?

A legal separation can be obtained by filing a request in court and obtaining a court order. The requirements for obtaining a legal separation vary by jurisdiction.

Can you date while separated?

Yes, in most cases, individuals are free to date during separation, but it is important to check the specific laws of the jurisdiction and any separation agreement that may be in place.

What is a separation agreement?

A separation agreement is a legally binding contract between two separated spouses that outlines the terms of their separation, including issues such as property division, alimony, and child custody.

More commonly asked questions below!

Can a separation agreement be changed?

Yes, a separation agreement can be changed, but it typically requires the agreement of both parties and the approval of a court.

Can a separation agreement be enforced by a court?

Yes, a separation agreement can be enforced by a court if it is deemed to be valid and enforceable.

How long does a separation last?

The length of separation varies and can last indefinitely, or until the couple reaches a divorce settlement or decides to reconcile.

What are the grounds for divorce after separation?

The grounds for divorce after separation vary by jurisdiction but commonly include irreconcilable differences, separation for a specified period of time, and cruelty or abuse.

What are the 5 stages of marriage separation?

Marriage separation is a difficult process that can be emotionally and mentally draining for all parties involved. There are typically five stages that individuals go through during a separation.

The first stage is shock and denial, where individuals may find it hard to believe that the separation is happening and may feel a sense of disbelief.

The second stage is anger and bargaining, where individuals may feel anger towards their partner for the situation and may attempt to bargain for a reconciliation.

The third stage is depression and sadness, where individuals may experience feelings of sadness, loss, and emptiness.

The fourth stage is acceptance, where individuals begin to accept the reality of the separation and move forward with their lives.

The final stage is resolution and moving forward, where individuals have fully processed the separation and are ready to move on with their lives, either through reconciliation or divorce.

It is important to note that not all individuals go through these stages in a linear manner, and some may cycle through stages multiple times.

Each individual’s experience of separation will be unique and may differ from others. Regardless of the specific experience, seeking support from friends, family, and mental health professionals can be essential for individuals during the separation process.

What Is A Separation?

Separation is living separately and apart from your spouse. As long as one or both parties to a marriage or, in provinces that recognize their legality, common-law marriages decide to live separately and apart, they are considered to be separated.

The law does not require a court proceeding or formal process for separation.

What if neither my spouse nor I can afford to move out? Moving out of the home you share with your spouse can be expensive particularly if leaving a home that you own together with your spouse and must contribute to a monthly mortgage payment.

Parents deciding to separate might elect to remain in the same house for the benefit of their children and to make parenting easier.

Regardless of the reason you choose to do it, you can live separately and apart while remaining under the same roof as your spouse.

As long as you and your spouse have separate sleeping arrangements and do not conduct yourselves as normally associated with a couple, such as eating meals together or going out together.

The law considers you to be living separately and apart to satisfy the requirements for separation.

Questions About Separation

If I move out during the separation, can my spouse change the locks?

Your spouse cannot prevent you from entering the home the two of you shared while living together, including changing the locks when you move out.

However, a court may grant a restraining order to someone at risk of being harmed by a current or former spouse.

A restraining order could prevent the offender from returning to the home of the victim. Violation of a restraining order could result in a person being jailed for committing a criminal offence.

How does a separation differ from a divorce? A divorce ends a marriage and requires a formal court proceeding. Separation does not end a marriage, and separated couples are still married.

See our main family law page to learn more. Questions about separation need to be answered by a lawyer.

Do I need a separation agreement to be separated?

Separation does not automatically resolve the issues when couples are no longer together, including the following:

  • Child custody and parenting arrangements
  • Child and spousal support
  • Division of real and personal property owned by the couple
  • Responsibility for payment of debts incurred during the marriage
  • Possession of the matrimonial home to raise the children of the marriage

Questions About Separation And Your Partner

Unless the parties resolve these and other issues through negotiations, a court proceeding will eventually be required.

A judge will then make the decisions. It usually is better for the parties to control their lives by reaching an agreement than leaving the decision to a judge.

The decisions you and your spouse make are written into a separation agreement prepared by your lawyer.

A separation agreement is a legally binding and enforceable contract. Did you and your spouse decide to file for divorce?

The separation agreement simplifies the process by eliminating the need for a court to hold hearings. You get to decide the issues, and the answers are contained in the agreement.

Does separation become a divorce?

No matter how long you and your spouse live separately and apart, it does not become a divorce. You can use separation for at least one year as a ground for filing for a divorce.

A lawyer experienced in separation, divorce, and other family law matters can be a tremendous source of advice and guidance.

The assistance of a lawyer during the negotiations is helpful. They can work towards the completion of a separation agreement which helps to ensure the protection of your rights.

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