Divorce and Separation: What’s the difference?
The legal difference between separation or divorce is mainly one of two things. Separation can be applied to both married and commonlaw couples. Divorce can only be applied for married couples. Although it is common to hear terms like “common-law divorce”, in Alberta there is no such thing.
What is Separation?
Separation sounds simple enough. Do you have a spouse? But what if your partner still wants to be friends? What if you couldn’t afford to move but moved into a different room? You might also be able to continue seeing each other even if you’ve never lived together. Sometimes, it may not be as easy as you thought when you decide to separate legally.
Alberta legislation doesn’t provide much guidance. The Adult Interdependent Relationships Act in Alberta defines adult interdependent and “common law” in Alberta. It says that adult interdependent partnerships cease when the interdependent partners live apart for more than one-year and either one or both of them intend to end the relationship. The Divorce Act is almost identical.
There is a lot of caselaw to help interpret the meaning of “separate and apart”, as the legislation does not provide much guidance. It is not possible to determine whether a couple is divorced. Instead, a variety of factors are taken into consideration, including financial separation, physical separation and continued intimate relationships, whether they continue to socialize as a couple or separately, and whether the parties plan to take vacations together.
Each relationship is unique and each case must be examined individually in order to determine if they are separated. Most cases, it is not about whether or not the parties have separated. It is more about when they separated that matters. This could have major repercussions on property division as well as child or spousal support. Separation can also have significant tax implications. Separation would mean that the parties no longer have to file taxes under ‘Common Law’ or Married’, but rather as a ‘Separated.
What is Divorce?
The legal end of a marriage is called divorce. In order to get a divorce, the parties must be separated for at least one year. A spouse can request a divorce before that time period, which gives them the opportunity to work out any remaining issues. A divorce will usually not be granted until property, spousal and, if applicable parenting, custody and support have been resolved.