What’s the Difference Between Separation and Divorce?

Legally, separation and divorce are very different. Separation happens when you and your partner decide to live apart. You don’t need a legal document or a court order to be separated. You just have to live “separate and apart”, even if it’s under the same roof. What matters is your intention to end the relationship.

Parties may disagree on the date of separation and need a judge to determine it. This will be a very fact specific decision, considering both parties’ conduct (sexual, sleeping, financial, etc.). The date of separation may have an impact on property, support or parenting.

Divorce is a legal process that ends your marriage. This has to be done by way of court application, normally by consent once all other issues have been resolved. You must be separate and part one year, or adultery or cruelty to have occurred, to get divorced. You must also have dealt with all issues pertaining to your children, if any, such that the court needs to be satisfied that adequate provision has been made for them accordingly.

What is a legal separation then? There is really no such thing legislatively, but I would define it as the parties are separated but not divorced, and have all of their issues resolved legally, in a formal and binding separation agreement.