Legal Separation or Divorce In Quebec, two legal procedures allow married couples to legally end their life together: legal separation (also known as separation from bed and board) and divorce. Although these processes may seem similar, they differ in several essential aspects.
Legal Separation
Legal separation is a judicial procedure that authorizes spouses to live separately without dissolving the marriage. Conjugal obligations of respect, fidelity, help, and assistance remain in effect. Spouses may also remain bound by certain clauses in their marriage contract even if they no longer live together. This option is often chosen for personal or religious reasons, when spouses wish to live separately while maintaining the matrimonial bond, which may offer certain advantages.
Legal Separation Procedure
Spouses may submit a joint application for legal separation to the Superior Court of their judicial district. In the event of a disagreement, one of the spouses may file a unilateral application. The court may grant a legal separation if it finds one of the following grounds:
- The spouses are no longer living together at the time of the application.
- One of the spouses has committed a serious breach of a matrimonial obligation.
- A series of facts make continued cohabitation intolerable.
It is important to note that legal separation does not automatically cancel gifts granted in consideration of the marriage. Nevertheless, gifts inter vivos or in contemplation of death provided for in the marriage contract may be cancelled, modified, or maintained by the court depending on the circumstances. Legal separation ends either by the voluntary resumption of cohabitation or by the granting of a divorce.
Divorce
Divorce, on the other hand, legally dissolves the marriage, ending all conjugal obligations. In Canada, the Divorce Act governs this procedure. It is the breakdown of the marriage that matters for its dissolution. To this end, to obtain a divorce judgment, one of the following grounds must be demonstrated:
- The spouses have been separated for at least one year and remain so at the time the divorce is officially granted.
- Adultery has been committed by one of the spouses.
- The spouse applying for divorce has experienced physical or mental cruelty, making cohabitation unbearable.
Most divorces are granted on the basis of a one-year separation, even if other grounds exist. Divorce proceedings also address corollary issues such as child custody, support payments, and the division of property.
Note that as long as a marriage is not dissolved by divorce, it is impossible to enter into a new union (marriage, civil union), in accordance with legislative provisions.
Which option to choose?
In conclusion, the choice between legal separation and divorce depends on personal circumstances, religious beliefs, and the objectives of the spouses. It is recommended to consult a family law professional to evaluate the specific situation of each couple and determine the most appropriate course of action.
