Separation and divorce
Married couples: How to make the separation official
In the eyes of the law, divorce and separation from bed and board are the two legal proceedings that allow married couples to make their separation official. What do these proceedings involve? What are the consequences? What will happen if a married couple decides not to take any action at all? Here’s what you need to know.
Divorce
Divorce is the most common legal proceeding to make a separation official.
This legal proceeding allows married couples to end their marriage and settle all the consequences of their breakup (e.g., division of parenting time with the children, child support, spousal support, division of property, and other financial agreements ).
Once divorced, ex-spouses are no longer united in the eyes of the law and therefore have the right to remarry.
Spouses need to have a valid reason to divorce. The three reasons recognized by law are the following:
- adultery, i.e., extraconjugal sexual relations
- physical or mental cruelty
- having lived separate and apart for at least one year.
You don’t have to live at two different addresses to be “living separate and apart.” You simply need to demonstrate that you don’t intend to be a couple anymore (e.g., sleeping in separate bedrooms, no longer presenting yourselves as a couple to the people around you, etc. ).
To get a divorce in Quebec, at least one of the spouses needs to have lived in the province for at least one year before filing the application.
To get a divorce, spouses have to obtain a court judgment even if they agree on everything.
To do so, spouses can choose to institute divorce proceedings together. This is called a “joint” application for divorce.
One of the spouses can also institute divorce proceedings alone by filing what is called a “contested” application for divorce. But nothing prevents the spouses from reaching an agreement at any point in the process.
Separation from bed and board
Less common than a divorce, separation from bed and board is a legal proceeding that makes a couple’s separation official without ending their marriage. It’s also known as “legal separation.”
This means that the spouses are still married in the eyes of the law, but the separation from bed and board judgment provides official recognition that they are no longer a couple.
Separation from bed and board also allows spouses to settle most of the consequences of their separation (e.g., division of parenting time with the children, child support, spousal support, division of property, and other financial agreements).
However, some effects of the marriage continue to apply. For example, if one of the spouses dies without a will, the other spouse can assert his or her rights in the succession.
Moreover, the spouses still owe each other “succour and assistance”. This means that a judge could refuse to ratify an agreement between the spouses that includes a renunciation to claim spousal support in the future.
Legal separation (Éducaloi)
Dying Without a Will (Éducaloi)
Vocabulary notes
“Separation from bed and board” is not the same as “de facto separation”.
“Separation from bed and board”, also referred to as “legal separation,” is the outcome of legal steps taken to have a court recognize the end of the spouses’ conjugal relationship.
“De facto separation” is just a way of saying that the spouses are living apart and that they don’t intend to be a couple anymore.
Separation from bed and board could be an interesting option for couples who have religious or cultural reasons for not getting a divorce.
It also allows couples who don’t meet the requirements for divorce to obtain a judgment on the division of their property or the payment of a compensatory allowance.
If you’re separated from bed and board but change your mind and decide that you want a divorce, you have to bring legal proceedings again.
They might be simpler this time, however, since most aspects of your divorce will have already been settled in the separation from bed and board.
For separation from bed and board, spouses have to file a written application with the Superior Court of Quebec. Either spouse can take this step alone, or the spouses can do it together.
If the spouses choose to start legal proceedings together, they must agree on all aspects of their application (e.g., division of parenting time with the children, child support, spousal support, division of property, and other financial agreements ) and prepare a “joint application for separation from bed and board.” A judge can then recognize the agreements and convert them into a judgment.
One of the spouses can also institute proceedings alone and in that case will have to prove to the judge that the spouses no longer intend to stay together as a couple. Their intention may be because:
- the spouses are living separate and apart at the time of the application
- cohabitation between the spouses has become intolerable
- one of the spouses has seriously failed to perform an obligation resulting from the marriage (e.g., infidelity or abandonment ).
You don’t have to live at two different addresses to be “living separate and apart.” You simply need to demonstrate that you don’t intend to be a couple anymore (e.g., sleeping in separate bedrooms, no longer presenting yourselves as a couple to the people around you, etc. ).
What happens if married couples wait too long to make their separation official?
If a couple waits too long to make their separation official, they might also lose their rights to certain financial claims they could have made at the time of the separation.
This waiting period may also impact the division of their property. In theory, married couples must divide the value of the property accumulated between the date of marriage and the date on which the proceedings started. Depending on the situation, the judge may agree to use the date of separation instead, but this is the exception, not the rule.
If the spouses take no legal action at all, their own or their new partners’ eligibility to some government programs may also be affected. For example, if one of the spouses dies, the other spouse will receive the surviving spouse’s pension under the Québec Pension Plan, even if the deceased was in a serious relationship with another person.
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Warning
The information presented on this page is not a legal opinion or legal advice. This page explains in a general way the law that applies in Quebec. To obtain a legal opinion or legal advice on your personal situation, consult a legal professional.
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