Upon the dissolution of marriage, spouses may elect to enter into a separation agreement wherein important decisions such as property division, child custody and access, and support obligations are settled. Aptly named, a separation agreement is a contract, which may be prepared upon the separation of the parties. Separation automatically occurs once the parties begin living separate and apart and there is no reasonable prospect that they will resume cohabitation. However, a separation agreement does not legally end the marriage; only a divorce can legally sever the marital relationship. Consequently, if a separated party wishes to remarry, a divorce must first be obtained.
To obtain a divorce, an application must be made to the court and granted by a judge. According to Canada’s federally legislated Divorce Act, to become divorced, the wedded parties must demonstrate that there has been a breakdown of the marriage. To evidence a breakdown of the marriage, there are three recognized grounds for divorce including separation, adultery, and cruelty.
To demonstrate a breakdown of the marriage through separation, the parties must be separated for at least one year before a court will grant a divorce. However, separated parties may continue to reside in the same home while living separate and apart, provided there is sufficient disconnect in the affairs of the parties. Various elements that courts have considered are whether the parties continue to communicate with one another, share the same bedroom, continue a sexual relationship, and present themselves as a couple in public.
A breakdown of the marriage may also be established by adultery. Adultery is defined as voluntary sexual intercourse between a married person and a person who is not his or her spouse. Accordingly, if one can prove to the court, on a balance of probabilities, that their spouse has committed adultery, a divorce may be granted without the one-year separation period.
The final ground for divorce is cruelty. If one can satisfy the court that they have been treated with physical or mental cruelty of such a kind as to render cohabitation intolerable, by their spouse, a divorce may be granted without the required one-year separation period.
Although separation and divorce are certainly different, both separated and divorced parties are entitled to enter into separation agreements and have access to the same property division regime set out in Ontario’s Family Law Act. In effect, the only difference between separation and divorce is that divorced parties can legally remarry.