Do You Need a Divorce, or Just a Separation Agreement?

For many couples, the agreement is the main event and the divorce is paperwork. A well-drafted agreement lets both of you move forward with clear rights and obligations, without a trial. Our page on separation agreements in BC explains what makes an agreement work and when a court can set one aside.

One more point: separating does not require any court filing. Under section 3(4) of the Family Law Act, spouses can even be separated while still living in the same home. What the court looks for is one spouse communicating an intention to separate permanently, and action that backs it up.

Can You Separate and Never Get Divorced?

Yes. No law requires separated spouses to divorce. Some people stay legally married for years, or for life, after separating. If neither of you plans to remarry, you may feel no urgency at all.

But staying married has consequences. Until a divorce order takes effect, the marriage continues, so neither spouse can remarry. And an unresolved financial relationship can sit in the background for a long time. A separation agreement can give you certainty about property and support even if you never file for divorce.

If you go this route, also get advice about your will, insurance and beneficiary designations from a wills and estates lawyer, since separation often changes what you want to happen with them.

What Are the Time Limits for Property and Support Claims?

This is where BC law surprises people. Section 198(2) of the Family Law Act sets a two-year limit on starting a court proceeding to divide property or debt under Part 5, divide a pension under Part 6, or claim spousal support under Part 7. The clock starts at different times depending on your relationship:

• If you were married, the two years run from the date of the divorce judgment, or from an order declaring the marriage a nullity.
• If you lived in a marriage-like relationship, often called common-law, the two years run from the date you separated.

So for married spouses, the divorce itself is what starts the property clock. A married couple that separates and never divorces does not trigger the section 198(2) deadline. For unmarried spouses, separation starts it, which makes the deadline much easier to miss.

Section 198(5) adds a helpful rule: the clock is paused while the spouses are engaged in family dispute resolution with a family dispute resolution professional, such as a mediator or a lawyer working toward a settlement.

These limits apply to starting a court proceeding, and they are a major reason to get legal advice early, even when a separation feels amicable.

Which One Do You Need?

• You want to remarry: you need a divorce order. Nothing else changes your marital status.
• You need certainty about parenting, support, property or debt: you need those issues resolved, usually in a separation agreement or, if you cannot agree, a court order.
• You want both: the common path is agreement first, divorce after. Once the substantive issues are settled, an uncontested divorce is usually a modest filing exercise.
• You were never married: there is no marriage to dissolve, so no divorce. A separation agreement or an order under the Family Law Act resolves your issues, and the two-year clock is already running from separation.

Where to Get Advice

SiLaw Group Family Lawyers helps clients across Surrey and the Lower Mainland with both paths: negotiating and drafting separation agreements, and taking divorces through the court. If you are not sure which you need, our Surrey divorce lawyers can review your situation and map out the steps, including any deadlines that apply to you. Whichever route fits, SiLaw Group can help you get there with your rights protected.