Separation vs. Divorce: What’s the Best Choice in Canada?

When a couple decides to end their relationship, they have two options: separation or divorce. Both options have different implications and consequences, so it’s important to understand the differences before making a decision.

Keep reading our separation vs divorce guide to learn more!

What is the Difference Between Divorce and Separation?

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To provide a deeper insight into both concepts, we’ll review them individually. Let’s get into them.

What is a Divorce?

A divorce is a legal separation of a married couple. This means that the two people are no longer legally married to each other. A divorce can be granted for a number of reasons, such as adultery, abuse, or desertion, but also bad marital relations between the spouses.

To get a divorce, you must file for separation in court and when you do, one of the first things that will happen is that the court will divide your mutual property. This includes any assets or debts that you and your spouse have accumulated together.

Usually, this is done in a way that is fair and equitable to both parties.

What is Marriage Separation?

Separation is the dissociation of a married couple without getting a legal separation agreement, i.e. a divorce. This means that the two people are still legally married to each other, but they are living apart.

Separation is a lot like taking a break from your relationship. It can be a way to figure out what’s going on and whether you want to continue your relationship or get a divorce. Often, separation is used as a way to save a marriage.

When it comes to mutual assets, all of them remain intact. This includes any assets or debts that you and your spouse have accumulated together. The court will not divide these assets, so you will need to come to a mutual separation agreement about what to do with them.

This can be difficult, but it is important to remember that you are still legally married to the other person.

When to Choose Separation

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Let’s go over some of the most common reasons couples opt for marriage separation, to help you understand if it’s the right option for you too.

Uncertainty

If you’re not 100% sure if you want to end the marriage, marriage separation may be a good option for you. When you separate, you’re essentially giving yourselves some time to figure out what’s going on. You can live separately and see if you want to work things out or get a divorce.

Less Administration

Separation can be seen as a less drastic way to end a relationship as it doesn’t have the same legal implications as divorce. It also allows you to remain financially and legally connected to your spouse, which may be beneficial if you decide to get back together in the future.

What is more, a separation allows one spouse to still be able to receive health insurance from the other spouse’s job, whereas a divorce makes that impossible. This can be a major issue if one spouse doesn’t have any health insurance of their own and is dependent on the other person.

Religious Reasons

Some people don’t want to get a divorce out of religious reasons. They may believe that divorce is wrong or that it’s against their religion. If this is the case for you, couple separation may be a good option, as it will allow you to live separately without getting a legal divorce.

However, note that you will still be legally married to your spouse and you will need to come to an agreement about what to do with any assets you have accumulated together.

Tax Benefits

Another reason to consider couple separation is if you want to take advantage of the tax benefits. When you’re separated, you can still file your taxes jointly. This means that you can claim certain deductions and credits that you wouldn’t be able to if you were divorced.

If you decide to get a divorce down the road, your separation agreement will still be in place. This means that you will have to go through the separation process again and the court will still divide your assets in a fair and equitable way.

When to Choose a Divorce

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Now let’s see what the other option brings. In the battle of separation vs divorce in Canada, when should you opt for a divorce?

Certainty

If you’re 100% certain that you want to end the marriage, divorce is the best option. This will allow you to legally separate from your spouse and move on with your life.

No Financial Benefits

If you don’t see any financial benefits from your marriage, such as mutual assets, joint taxes and health insurance, then you should go for a divorce.

New Marriage

If you want to remarry, it’s important to know that you can’t legally do so until you’ve gotten a divorce. A couple separation does not allow you to remarry, unfortunately.

Fresh Start

If you want to completely get away from your spouse and don’t want to be considered next of kin, then what you’re looking for is a divorce.

How to File a Divorce in Canada?

Let’s review some quick steps to divorce in Canada.

To be able to file for a divorce in Canada, you need to meet the following criteria:

  • You and your partner are married under the laws of Canada, or another country’s law, which has been recognized in Canada.
  • Your marital relationship has come to an end.
  • You or your spouse have resided in a Canadian province or territory for a full year immediately before submitting your paperwork.

Now, how to actually file a divorce in Canada?

According to the Canadian Divorce Act, you need to submit the appropriate paperwork for your province or territory and file them in court if you want a divorce or ask your lawyer to do it for you. You then need to pay an application fee and follow the rules of the court that is processing your divorce.

It’s usually a good idea to get legal counsel before applying. A lawyer can explain your rights and obligations as well as how the law applies to your scenario. He or she may also tell you what other paperwork you’ll need to submit with the court.

Depending on your province or territory, you might be able to get divorce application forms and information from:

Before you apply for a divorce, it’s best if you and your spouse can agree on major issues like child support, custody, and parenting arrangements, as well as spousal support and property matters. If you can’t come to an agreement, request that the court rule on it. However, if you do that, your divorce may take longer.

Wrapping it all up

Divorces and separations are always complicated and uncomfortable to go through with, so it’s important to understand the difference between both concepts.

We hope we’ve made the separation vs divorce dilemma a bit more understandable and that you’ll make the right choice!

 

FAQ

Should I get a divorce?

There is no easy answer when it comes to this question. It depends on a number of factors, such as whether you and your spouse can agree on major issues, whether you have children, and how long you’ve been married.

If you’re considering a divorce, It’s best to speak to an attorney who can help you weigh your options and understand the process.

What is legally separated in Canada?

Canada does not have a legal separation agreement compared to other countries, meaning that to be considered legally separated, you and your spouse need to file for a divorce.

What is a separation agreement?

A separation agreement is a legal document that outlines the terms of a separation between two individuals. This document can include things like child custody, child support, and division of assets. It’s important to have a separation agreement in place if you want to avoid any legal disputes down the road.

However, note that this is between you and your spouse. To be considered legally separated by the state, a divorce is necessary.

If you’re not sure what you want, you might want to go over the pros and cons of separation vs divorce.

ABOUT AUTHOR

Mila is an English literature student and a devoted animal's rights advocate. Despite her love for the written word, she's a keen observer of the everyday world and an excellent researcher with a bright and fresh perspective. When she's not doing research, you're most likely to find her out for a walk with her dog or binge-watching a TV show.

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