Do You Have to Be Legally Separated to Get a Divorce in BC?

If you are married and the relationship is over, you may be wondering whether you must first go through a formal legal separation before you can ask for a divorce. Many people expect a form to file or a court order to obtain.

In British Columbia it works differently. This article explains what separation means, how the one-year rule for divorce works, and why the date you separated can matter for other parts of your situation.

This article covers the law of British Columbia.

There is no formal legal separation in BC

The province's guidance is plain: 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 do not file anything with a court or registry to become separated.

You also do not need a lawyer just to separate or to 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 under the same roof?

Yes. Under the Family Law Act, spouses may be separated even though they keep living in the same residence. The court may look at evidence such as one spouse telling the other that they intend to separate permanently. Provincial guidance says a clear intention of permanent separation must be communicated and acted upon.

• Telling your spouse clearly that the relationship is over.
• Changing your living arrangements, such as sleeping and eating separately.
• Keeping notes or messages that show when and how this was communicated.

How a court weighs this kind of evidence depends on the facts, so ask a lawyer if the date is disputed.

The one-year rule for divorce

The court will not grant a divorce until the spouses have been separated for at least one year, although a spouse can apply at any time after separating. Under the Divorce Act, breakdown of the marriage is established if the spouses have lived separate and apart for at least one year immediately before the divorce is determined.

Residency also matters: one spouse must have lived in BC for a year or more. Only the BC Supreme Court can grant a divorce. It must be satisfied that reasonable arrangements have been made for any children, including child support, and the divorce becomes final 31 days after the order if there is no appeal. You cannot remarry until then.

Spouses are treated as living separate and apart for any period when they lived apart and at least one of them intended to separate. A short attempt at getting back together does not necessarily restart the clock: a period of separation is not interrupted by resumed cohabitation totalling not more than ninety days.

Two different 90-day rules

It is easy to confuse the divorce rule with the property rule, because both mention 90 days. They are separate and do different things.

If the reconciliation is less than 90 days in total, or the main purpose was not to reconcile, s.83(1) does not apply and the original separation date stands for property purposes.

Why the separation date matters, and what to do next

Claims for property or debt division, pension division and spousal support under the Family Law Act generally must be started within 2 years. There are exceptions: a spouse can apply to set aside a property or spousal support agreement within 2 years after first discovering, or reasonably ought to have discovered, the grounds; the 2-year limit does not apply to spousal support reviews under ss.168 or 169; and the time stops running during family dispute resolution or a prescribed process. For married spouses that period runs from the divorce judgment, and for unmarried spouses in a marriage-like relationship it runs from the separation date. A married person claiming spousal support under the federal Divorce Act has no time limit. Child support and parenting claims are not subject to that two-year limit.

• Write down the date you believe you separated and how it was communicated.
• Note the date anyone moved out, and any attempts to reconcile.
• Gather basic information about property, debts and children.
• Speak with a lawyer about timing, especially if you plan to wait before applying for a divorce.

Frequently asked questions