Frequently asked questions
Q: What’s the difference between separation and divorce?
A: Separation occurs without a formal process or the involvement of lawyers. As soon as someone communicates to their partner that they intend to separate from them, they are separated. To be divorced, the married couple must receive a court order ending the marriage. This order can only be obtained after the spouses having lived separate and apart for at least one year. In BC, the family law applies similarly to same-sex relationships.
It's possible to be separated even though you're still living together in the same home, but you need to prove that you're not living together as a married couple if this happens. There must be physical separation coupled with recognition by at least one of the spouses that the relationship is at an end.
Upon separation, couples may prepare a separation agreement outlining the manner in which they choose to divide their family property and debt. The separation agreement may also address spousal support, child support and parenting arrangements.
Q: Can you get a divorce if you've been separated for less than a year?
A: The Divorce Act says you can get a divorce on one of three grounds:
- intentional separation for more than one year
- physical or mental cruelty
Most divorces are granted because a couple has been separated for more than a year.
You don't need to wait a year if you want to get a divorce based on either adultery (your spouse cheated on you) or physical or mental cruelty. If you apply on these grounds, you need to prove the adultery or cruelty. Thus, unless your spouse is likely to admit to being adulterous or cruel, getting a divorce on those grounds will take more time and money than waiting for a year and getting a divorce that way.
Q: Can you apply for an uncontested divorce in BC if your spouse lives outside of BC?
A: Yes. The Divorce Act says you can apply for a divorce in any province or territory where you or your spouse have been a resident for a year immediately before the divorce. If you've been living in BC for at least one year and you're still living in BC, you can apply for a sole or joint uncontested divorce in BC Supreme Court.
Q: Can family disputes be resolved from out of court?
A: It is generally better for most families to utilise out-of-court dispute resolution processes.
For families, out-of- court dispute resolution is generally cheaper, quicker and less acrimonious than court proceedings and the outcomes are better and longer-lasting. Although not all cases can be appropriately resolved in out-of-court dispute resolution, most family disputes are better dealt with outside the courtroom.
Our lawyers can assist you during these out-of-court dispute resolution processes.
Q: What is a protection order?
A: A protection order can restrain a family member from contacting or communicating with another family member where there is a risk of family violence.
To promote timely, effective enforcement — which can save lives in this case — the protection order is enforced through section 127 of the Criminal Code rather than through the civil justice system. When a protection order is breached, it triggers the use of the Criminal Code. If the protection order is never breached, the parties are never brought into the criminal system.
Protection orders can be made on a stand-alone basis. Priority is given to safety-related orders—protection orders, peace bonds or other safety-related orders will be enforceable despite a conflicting family order.