What is the difference between separation and divorce?

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Written By PeterLogan

Founded by a collective of barristers, solicitors, and academic legal experts, PreferLaw began as a conversation over how to bridge the gap between legal professionals and the lay public.





What is the difference between separation and divorce?

It is mostly a legal distinction between divorce and separation. Separation is possible for both married and common-law couples, while divorce can only be applied to married couples. Although you might hear the phrase “common law divorcement”, there is no common law divorce in Alberta.

What is Separation?

Separation seems like an easy decision. Are you still married? What if your spouse is trying to reconcile with you but you don’t want to divorce? What if your partner is still trying to reconcile but you can’t afford to move? What if you have never lived together but still see each other regularly? It may not be as simple as you think when you’re legally separated.

Alberta’s legislation does not offer much guidance. The Adult Interdependent Relationships Act (also known in Alberta as “common law”) defines adult interdependent relations. It states that adult interdependent couples cease to exist when they “live apart and part for more that one year” and that one or both adult interdependent partner “intend that the adult interdependent relationship end.” The Divorce Act uses almost identical language.

The legislation is not clear and there has been a lot of case law that clarifies what “separate” means. Although there is no one factor that will determine if a couple is separated, there are many factors to consider. These include financial separation, physical separation, financial separation, continued intimacy, continuing socialization with family and friends as a couple, or individually, vacations, and so on.

Every relationship is unique so each one must be evaluated individually to determine whether the parties are actually separated. The question isn’t whether the parties are divorced, but when they separated. This can have serious repercussions on property division and child support. Tax consequences can also be caused by separation. The parties would no longer file their taxes under ‘Common law or ‘Married’, but instead as ‘Separated’.

What is Divorce?

Divorce refers to the legal ending of a marriage relationship. A divorce is usually granted after a year of separation. A spouse can still apply for divorce before the one-year period expires. This allows for time to resolve any outstanding issues. A divorce is not granted unless the issues of property, spousal support, and parenting, custody, and child support are resolved.

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