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Legal Separation vs. Divorce

If you and your husband or wife are parting ways, you will have some important decisions to make.  Before you can figure out which is best for you, a legal separation or divorce, it’s imperative to understand the difference between the two and learn more about both options.  Equipped with the facts, you can determine the best way to proceed in your individual circumstance since every situation is unique.

The Difference Between Legal Separation and Divorce

When two people decide to separate who have been living together as a couple – whether married or under common law in Canada – one of two things take place.  They will either divorce or legally separate.  In a legal separation, the marriage does not end but the couple no longer lives together and legal arrangements concerning debts, bills, and property are arranged.  Divorce entails the court officially and legally ending a marriage.

Property you will need to consider includes:

  • Your home
  • Any property including rental property, land, etc.
  • Contents within your home
  • Retirement savings
  • Bank account funds (checking accounts, savings)
  • Cars
  • Pets
  • Insurance plans
  • Investments

Debts include:

  • Reoccurring bills (phone, utilities, car payments)
  • House payments or rent
  • Bank loans
  • Credit cards

In Canada, the territory or province you reside in will determine which laws apply to you, which will ultimately rule how your property and debts will be divided.

Legal separation vs. a divorce is a personal choice that should be based upon personal preference and the details of the individual relationship. There is no defining factor as to which is best. It’s a matter of which works best for you.

Legal Separation

A legal separation is different than just splitting up and living apart.  It is a legal and binding contract between two individuals that involves a written record of how the issues within the marriage or common law marriage are to be handled.

It is not required that a legal separation be implemented for couples who are separating but if the separation is to be long-lasting or permanent, it is highly advised, especially when there are shared debts and property.

If you are able to reach agreements of the legal separation on your own, legal representation may not be needed.  If you can’t though, you will want to seek legal counsel.

Divorce

While you are not legally required to hire a divorce lawyer to come to a final agreement of how your property and debts will be divided, it is advised.  Many factors are involved when deciding the long-term consequences of decisions that come from a legal divorce.  You can’t go back for a “redo”, so it is always best to be certain what you agree to is best for you… now and in the years to come.

How it Works

In both a legal separation and a divorce, the way property and debts are divided are typically the same.  The difference is the status of the marriage is severed in a divorce and is not when legally separated.

Common Law

Dividing property in a legal separation when you are bound by common law is fairly simple.  The person who brought the property into the relationship or purchased it during the time you were together typically keeps it.  In the event you played a part in paying for it, you may be entitled to part of it or compensation.  The same is true the other way around.  If the two of you cannot agree on how to work it out, it can be decided in a court of law.

Legal Marriage

When you are married, property and debts are generally divided equally among the husband and wife.  You may, however, reach a different agreement between the two of you.  If no agreement can be reached, the court will decide.  In the event of a court proceeding, each side will usually be represented by an attorney.

Legal Representation is Vital

When you and your partner are separating, whether by means of legal separation or through divorce, it is crucial to seek advice so you don’t end up on the short end.  Especially when a divorce is sought, the agreements you make will affect you for the rest of your life.  The end of a relationship is a very emotional time.  Legal counsel is advised to ensure the best resolution is met.

Counsel can include an attorney, a mediator, a notary, or an arbitrator.  The counsel that best suits your needs is a matter of personal choice based upon how complex your situation is and other considerations as well.

Ending a relationship is never easy.  To make the situation as painless as possible, be sure to seek representation, no matter which type you feel is the best suited.

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