Separation Agreement vs. Divorce in BC: What’s the Difference and What you Need

When couples separate, one of the first questions I’m often asked is: “How do we get divorced?” And my next question is “Well, that depends. Do you have a Separation Agreement yet?”.

It’s a common point of confusion. The words separation and divorce often get used interchangeably, but in family law they mean very different things.

So, what's the difference between a Separation Agreement and a Divorce?

The difference is that a Separation Agreement deals with everything, and a Divorce deals with just one thing - ending the legal status of your marriage. Only legally married couples need to apply for divorce, as divorce laws apply specifically to married couples. Common law partners do not need a divorce, but may have other legal considerations.

What a Separation Agreement Does

A Separation Agreement is the foundation for your new life after separation. It is a detailed, legally binding contract that sets out the full plan for your parenting, finances, and property. The agreement outlines the legal rights and responsibilities of spouses, including the division of family property according to the law.

It typically covers:

• Parenting arrangements: where the children will live, how decisions will be made, and how you will share time and responsibilities

• Child support: who will pay support, how much, and how it will adjust as circumstances change

• Spousal support: whether it is payable, how much, and for how long

• Division of property and debt: what happens with the house, RRSPs, pensions, bank accounts, vehicles, and any debts

  
  

Most Separation Agreements are about 20 to 25 pages long because they need to address every aspect of your separation. It is the complete plan for how you and your spouse will move forward financially and practically as co-parents. The separation date is a key detail included in the agreement, as it marks the formal end of the spouses' unified life and is important for legal clarity.

Why You Need a Separation Agreement

In British Columbia, you do not need to file for divorce to separate. The moment you decide to live separate and apart with the intention of ending your relationship, you are legally separated. When a couple decides to separate, they are considered separated, even if they continue to live in the same home or under the same roof. In British Columbia, it is possible to be considered separated while still living in the same home or under the same roof, as long as the couple demonstrates (or agrees) that they are living independently and no longer functioning as a couple.

But to move forward in any practical way, such as selling your home, transferring property, refinancing a mortgage, or dividing pensions, you need a Separation Agreement. Here is why it matters:

• Banks and financial institutions require it. You will need a signed Separation Agreement to get approved for a new mortgage or to remove a spouse’s name from an existing one.

• You need it to transfer or sell property. Land title offices require proof of each spouse’s consent and entitlement.

• It is necessary to divide pensions. Pension administrators will not process a division without a Separation Agreement or a court order.

• It makes parenting and support arrangements enforceable. Without a formal agreement, there is nothing to rely on if someone stops following through.

In short, your Separation Agreement makes your separation workable in real life. It gives both of you clarity, security, and an enforceable plan.

What a Divorce Does

A Divorce is much simpler. It is a court order that says, in effect, “You are no longer legally married.”

In British Columbia, the divorce process involves applying to the Supreme Court, which has the authority to grant a divorce judgment after all legal issues have been resolved. A Divorce does not deal with parenting, support, property, or anything else. When you apply for an uncontested divorce, the final order is usually a single line ending your marriage.

Because of that, you normally should not apply for divorce until your Separation Agreement is complete. Spouses must be separated for at least 12 months before they are eligible for a divorce, unless there are other legal grounds. The Supreme Court will only grant the divorce judgment once all legal issues, particularly those around parenting and child support, have been resolved. The court needs to be satisfied that you have a plan for how you will care for your children before granting a divorce order.

How Mediation Can Help

Mediation is one of the best ways to create your Separation Agreement. Instead of going through lawyers and the courts, you and your spouse work together with a neutral mediator to talk through each issue calmly and respectfully.

In mediation, we look at your family’s unique needs and find practical, fair solutions for parenting, support, and finances. The process works by guiding both parties through each step, helping you understand your legal rights and responsibilities so you can make informed decisions. The goal is to help you reach a complete agreement that reflects your decisions and that both of you can live with. Once you have that agreement, you can move forward with an uncontested divorce.

A Family Lawyer and Mediator can turn the arrangements you make in mediation into a legally binding Separation Agreement.

This is very different from asking a court to decide everything for you. If you go to court for a contested divorce, you would have a full trial with lawyers, witnesses, and a judge who makes the decisions for your family. It is a stressful, expensive, and time-consuming process. Mediation allows you to stay in control, resolve issues cooperatively, and finalize your separation in a much more efficient and peaceful way.

Then you simply apply for an uncontested divorce, which in BC is simply paperwork. You do not have to appear in court or speak to a judge. You submit your divorce application to the court registry, and once it is processed, you receive your Divorce Order back in the mail.

Do You Need a Separation Agreement and a Divorce?

If you’re married, eventually, yes, but not at the same time.

Only legally married couples need to apply for divorce, and two spouses can be separated while remaining legally married. Your Divorce simply ends the marriage itself. You only need it if you want to remarry or if you want the formal legal status of “divorced.” Many couples finalize their Separation Agreement and then wait months or even years before applying for divorce.

In British Columbia, people in a marriage-like relationship or common law relationship have similar legal rights and responsibilities as married couples, but do not need a divorce to end their relationship. Common law partners are recognized under BC law after living together in a marriage-like relationship for two years period, and their rights regarding property division and spousal support are similar to those of legally married couples. There is a big difference for common-law couples when going through a separation, and that is the time limits. Learn the difference between Separating as a Common Law or Married Couple in BC

In Summary

• A Separation Agreement covers everything: parenting, child support, spousal support, property, and debt.

• A Divorce covers only one thing: ending the marriage.

• You need a Separation Agreement to make your separation workable, legal, and enforceable.

• You need a Divorce only if you want to remarry or formally end your marital status.

• Mediation helps you reach agreement on all issues so that you can file an uncontested divorce without ever going to court.

If you are separating, the best place to start is with a clear, fair Separation Agreement. Once that is in place, the rest is just paperwork.

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