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What Is the Difference Between Being Legally Separated and Divorced?

“Separation” and “Divorce” are two essential and differing concepts in Family Law proceedings. For individuals facing a breakdown in their relationship, it is important to understand the difference between the two terms in order to know one’s rights and obligations after the dissolution of a relationship.

Legally separated means that you are still married, but have decided not to live together and share a home with your spouse anymore, or if you remain living in the same household, you live separate and distinct lives. On the other hand, divorce is when you are no longer legally connected to your spouse because either one of you has filed for divorce. 

Legal separation can be a precursor step towards getting divorced; it just depends on what both people agree upon during their time apart from each other. You’ll hear about couples who have been living separately for years before they actually file for divorce because they want more time to think about whether or not it’s what they really want and need in order to move forward with their lives independently from one another.

What Is a Divorce?

Divorce refers to a formal declaration made by a court that indicates marriage dissolution. One distinction amongst married spouses who are separated and are not divorced is that they cannot legally remarry until a divorce has been obtained. In Canada, spouses are eligible for a divorce if one of the following events is present: (1) adultery, (2) cruelty, and (3) living separate and apart for more than one year. If the courts are satisfied that one of these has occurred, then spouses are entitled to a divorce. Determining the proof of adultery and cruelty is difficult, such claims would need a trial for their resolution. Most applications for divorce are on the basis of “living separate and apart for one year.”

An Application for divorce can be made by either spouse and does not require the consent of the other. However, the following criteria need to be satisfied before the court will grant a divorce:

  1. Reasonable arrangements have been made for any children of the marriage;
  2. The parties have removed any religions barriers to remarriage over which they have control;
  3. One spouse must have been living in the Court’s jurisdiction for at least one year; and
  4. The partners have not engaged in connivance or condonation in relation to the Divorce.

What Is Separation?

A separation is when two people who have been living together as a married or common-law couple decide to live apart or live separate lives. Under the Ontario Family Law Act, a separation will be deemed to occur where spouses live separately and apart with no reasonable prospect of resuming. The legal test will be met once that is established, and there is no requirement to provide documentation or court order. The individuals must establish that they have ended their spousal relationship, however, there is no requirement that spouses must be physically separated. For example, spouses can be considered as separated and living separate and apart while physically living in the same household.

Courts will look at the following factors to determine whether spouses are living separate and apart:

  1. Whether the spouses occupy separate bedrooms;
  2. Whether the spouses continue to have sexual relations;
  3. Whether the spouses hold themselves out to the community as a couple;
  4. Whether the spouses eat meals together as a family;
  5. Whether the spouses engage in joint social activities; and
  6. Arrangements regarding traditionally shared expenses.

It is important to acknowledge that there might be legal consequences of not getting a divorce. For example, married spouses who are separated but not divorced cannot sell or mortgage a matrimonial home without the consent of their spouse. A matrimonial home is defined under section 18 of the Ontario Family Law Act as “every property in which a person has an interest, and that is, or, if the spouses have separated, was at the time of separation ordinarily occupied by the person and [their] spouse as their family residence.” As a result, it is important to know the legal significance of being legally separated and divorced.

Separation Agreements

Spouses can rely on a separation agreement in order to settle issues faster than going to court. A separation agreement is a legal contract between a couple that provides a written record of how a couple has settled their issues pertaining to their separation. A separation agreement is not necessary to separate, however, it may be cost-effective and time-saving. Issues pertaining to living arrangements, division of debts and property, and spousal support are usually included in separation agreements.

Both married and common-law couples can legally separate. Once spouses are separated, they can make claims for spousal support and child support. Married couples can make a claim for an equalization of net family properties while common-law spouses can rely on equitable claims to establish a claim to any proprietary rights.


The end of a relationship can be an emotional time for everyone involved. In order to know what steps should be taken next, it is important to distinguish between the two terms “separation” and “divorce.” Divorce refers to a formal declaration made by a court that indicates marriage dissolution. A separation is when two people who have been living together as a married or common-law couple decide to live apart. Under the Ontario Family Law Act, a separation will be deemed to occur if there has not been any cohabitation for one year or more before commencing proceedings in court. It’s crucial during this difficult time that individuals understand how their rights change with these different legal statuses so they can make informed decisions.

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by Caryn

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