Do You Need to Be Legally Separated to Divorce in BC?

Many people assume they must file papers or get a court order to be "legally separated" before they can apply for a divorce. That worry often delays people who have already ended their relationship in every practical way.

This article explains what separation means in British Columbia, how the one-year rule works for divorce, and why the date you separated can matter for other issues such as property.

This article covers the law of British Columbia.

Is there a legal separation in BC?

No. British Columbia government guidance says there is no such thing as a "legal" separation. If a couple in a marriage or marriage-like relationship stops living together, they are separated.

You also do not need a lawyer to separate or to get a divorce. In many cases no court hearing is needed for a divorce order if both spouses agree and file the required forms at the Supreme Court.

Can you be separated while living in the same home?

Yes. Under the Family Law Act, spouses may be separated even though they continue to live in the same residence. A court may look at evidence such as one spouse telling the other they intend to separate permanently.

Government guidance says separation under one roof requires a clear intention of permanent separation that has been communicated and acted upon. How a court weighs the evidence of your separation date depends on the facts, so it is worth confirming with a lawyer if the date is disputed.

How the one-year rule works

The court will not grant a divorce until the spouses have been separated for at least one year. You can apply at any time after separating, and one spouse must have lived in BC for a year or more.

Under the Divorce Act, breakdown of a marriage is established if the spouses have lived separate and apart for at least one year immediately before the divorce proceeding is determined. Spouses are treated as living separate and apart for any period when they lived apart and at least one of them intended to live separate and apart.

• Only the BC Supreme Court can grant a divorce.
• The court must be satisfied that 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 you cannot remarry until then.

What if you try to reconcile?

For divorce, a period of separation is not interrupted if the spouses resume living together for a period, or periods totalling, not more than ninety days.

Property division has its own, different rule. Under the Family Law Act, spouses are not considered to have separated if, within one year after separation, they begin living together again with the primary purpose of reconciling and stay together for periods totalling at least 90 days. If the total is under 90 days, or the main purpose was not to reconcile, that rule does not apply and the original separation date stands for property purposes. Do not assume the two rules work the same way.

What to do next

• Write down the date you stopped living together as spouses, or, if you are still under one roof, the date you clearly communicated that the separation was permanent and began acting on it.
• Keep any messages or records that show that intention, especially if you still share a home.
• Note whether either of you has lived in BC for at least a year.
• Think about children, support and property, since a divorce order alone does not settle them and the time limits can differ.
• Get legal advice before signing any document that settles matters with your spouse.

If you are unmarried, divorce does not apply to you, but the Family Law Act still covers property, debt, support and children for spouses in a marriage-like relationship.

Frequently asked questions