Family Law Act vs. Divorce Act in BC: What Is the Difference?

If you are separating in British Columbia, you will hear about two laws: the provincial Family Law Act and the federal Divorce Act. They overlap, which makes it easy to wonder which one applies to you.

In short, the Family Law Act deals with the practical consequences of separation for many couples, while the Divorce Act is about ending a marriage and certain related orders. Which one matters depends on whether you were married.

This article covers the law of British Columbia.

Who each law covers

The Family Law Act applies to married and unmarried (marriage-like) spouses for property, debt, support and children. The federal Divorce Act applies only to married spouses and governs divorce, with its own corollary relief such as support and parenting orders.

Under the Family Law Act, a person is a spouse if married, or if they have lived with another person in a marriage-like relationship for a continuous period of at least 2 years. A spouse includes a former spouse.

There is an exception. Outside the property and pension division parts, an unmarried person who has lived in a marriage-like relationship and has a child with the other person is a spouse even without 2 years together. That means the child rule applies to matters such as spousal support but not to property or debt division.

What the Divorce Act is for

Only the BC Supreme Court can grant a divorce. Breakdown of a marriage is established if the spouses have lived separate and apart for at least one year immediately preceding the determination of the divorce proceeding. A court has jurisdiction if either spouse has been habitually resident in the province for at least one year immediately preceding the start of the proceeding.

A spouse can apply any time after separating, but the court will not grant the divorce until the one-year separation has passed. The court must be satisfied reasonable arrangements have been made for any children, including child support. The divorce becomes final 31 days after the order if there is no appeal, and the parties cannot remarry until then.

No lawyer is required to separate or get a divorce, and in many cases no court hearing is needed if both spouses agree and file the required forms at the Supreme Court.

Where the two laws overlap

Married spouses can have support and parenting matters dealt with under the Divorce Act as corollary relief. For those provisions, "spouse" includes a former spouse. A court has jurisdiction over corollary relief if either former spouse is habitually resident in the province at the start of the proceeding.

In making a parenting order under the Divorce Act, the court considers only the best interests of the child of the marriage. The Family Law Act has the same focus: the parties and the court must consider the best interests of the child only.

Time limits can differ. A married person claiming spousal support under the federal Divorce Act has no time limit, whereas under the Family Law Act the two-year limit applies. Which statute a claim is made under is something a lawyer can help you choose.

Two different 90-day rules

Do not merge these. Under the Family Law Act, for property division, spouses are not considered to have separated if, within one year after separation, they begin to live together again with the primary purpose of reconciling and continue to live together for periods totalling at least 90 days. If the total is less than 90 days, or the main purpose was not to reconcile, the original separation date stands for property division.

Under the Divorce Act, separate and apart is the test for the one-year period, and that period is not interrupted by resumed cohabitation totalling not more than ninety days. The two rules work differently and serve different purposes.

What to do next

• Work out whether you were married or are unmarried spouses, and note your relationship start and separation dates.
• Decide which issues you need to resolve: divorce, property, support, parenting.
• Remember property and spousal support claims under the Family Law Act generally must start within 2 years.
• Collect marriage and financial documents.
• Get advice on which Act and which court fits your claims.

Property division is in the Supreme Court, as the Provincial Court does not have jurisdiction over it except for companion animals.

Frequently asked questions