British Columbia Law

Is Marital Separation Different From Ending a Marriage in Canada?

By Andrew Liggett, Sea to Sky Law, New Westminster, BC

Many people are surprised to learn that separation and divorce are not the same thing in Canada — and that the distinction has significant legal consequences for your property rights, your spousal support entitlement, and your status under BC's limitation period rules.

What Is "Separation"?

For legally married couples in Canada, "separation" simply means that the spouses have decided to live separate and apart — with the intention, held by at least one spouse, that the marriage is over. Separation does not require a court order, a formal document, or even a physical change of residence (though separate residences are the norm).

What matters is the intention to end the marriage, and the date on which that intention was formed and communicated.

The date of separation matters enormously because it is the date from which limitation periods start running, from which family property values are generally calculated under BC's Family Law Act (FLA), and from which the one-year clock for an uncontested divorce begins.

Separation Does Not End Your Marriage

This is the key point that many people miss: you remain legally married until a court grants a divorce order. Separation alone does not sever the legal bond of marriage. Under the federal Divorce Act, a marriage can only be ended by a divorce order granted by a court — either by consent or after a contested hearing.

This has real-world consequences:

• You cannot legally remarry while separated but not divorced
• For estate planning purposes, a separated spouse is still your legal spouse — in BC, under the Wills, Estates and Succession Act (WESA), a separated spouse (who has not yet divorced) retains full rights as a spouse, including the right to a share of your estate if you die intestate, and the right to bring a wills variation claim against your estate
• Government pension and benefit designations may still list your separated (but not divorced) spouse as beneficiary
• Your separated spouse may still have standing as next of kin for health care decisions if you have not updated your Representation Agreement

How Common-Law Separation Is Different

For common-law couples — those in a marriage-like relationship for at least two consecutive years in BC — separation works differently. There is no divorce process for common-law couples. The relationship ends when one or both partners demonstrates, by words or actions, the intention to permanently end the relationship. At that point, the two-year limitation clock starts running.

Because there is no court order required to end a common-law relationship, the date of separation can sometimes be disputed — particularly if the couple reconciled temporarily or if they remained in the same home for financial reasons after the emotional separation. These disputes about the date of separation can affect limitation periods and property values, so documenting the date clearly is important.

The Critical Two-Year Limitation Period

BC's Limitation Act and the FLA together impose a two-year limitation period on most family law claims:

• Claims for division of family property and debt: must be commenced within two years of the date of separation (for all spouses — married and common-law)
• Claims for spousal support by a common-law spouse: must be commenced within two years of the date the relationship ended
• Claims for spousal support by a divorced spouse: there is no limitation period after divorce — a divorced spouse can apply for spousal support at any time, though delay may affect the result

Missing the two-year limitation period for property division is catastrophic — it permanently extinguishes the right to claim a share of family property, no matter how unfair the result. Courts have very limited jurisdiction to extend these deadlines, and they rarely do so.

The Divorce Process: What Is Actually Required

To obtain a divorce in Canada, at least one spouse must have been ordinarily resident in BC for at least one year before the divorce petition is filed. The most common ground for divorce — and the only one most BC courts process today — is a separation of at least one year. This means:

1. The spouses separate (with the intention to end the marriage)
2. They wait at least one year from the date of separation
3. Either spouse applies to the BC Supreme Court for a divorce order
4. The court grants the divorce order, which takes effect 31 days later (unless the court reduces the waiting period, which is rare)

Adultery and physical or mental cruelty are also grounds for divorce under the Divorce Act, but these are rarely used because they require proof and create unnecessary conflict.

The Practical Lesson: Get Legal Advice Early

The moment you decide your marriage or common-law relationship is over, the legal clock starts running. Waiting to get legal advice — because the separation is amicable, because you are not ready to "make it official," or because you hope to reconcile — can result in losing valuable property and support rights permanently.

Sea to Sky Law™ provides clear, plain-language advice to separating spouses throughout BC about their rights, timelines, and options. Contact Andrew Liggett BA JD CD as early as possible after separation — protecting your rights from day one makes every step that follows easier.

This article is general information, not legal or tax advice. Meetings are by appointment only, by phone or secure video.