Basically, a separation from bed and board is a judgment which frees the spouses (in the case of legally-married couples) from their obligation to live together.

Separation does not apply to couples in a civil union, nor to those who are living as de facto spouses. The civil union is ended by a judgment of dissolution or by a notarized declaration; for de facto spouses, they simply move to separate homes to end the relationship. We invite you to consult the Infosheets on Civil union and De facto spouses.

A separation judgment does not break the marital bond, which cannot be broken except by divorce, annullment of the marriage, or the death of one of the spouses. In other words, if you are legally separated, you are still married and subject to the obligations that the law imposes on spouses, like the duty to give mutual respect, loyalty, succor, and assistance.

In addition to releasing spouses from their obligation to live together, in a legal separation judgment the court may:

• order the division of the family patrimony between the spouses (home, car, furniture, RRSPs) (see the Infosheet on Family patrimony);
  
• order the liquidation of the matrimonial regime. For example, if your marriage is subject to the regime of partnership of acquests, you are entitled to ask that your spouse’s acquests be divided, and vice-versa (see the Infosheet on Partnership of acquests);
  
• determine child custody;
  
• fix the amount of child support payments and spousal support, if necessary;
  
• ratify any agreement made by you and your spouse concerning the above matters.

Once the separation from bed and board has been pronounced, both spouses are subject to the matrimonial regime of separation as to property. Essentially, this means that property acquired after the judgment belongs solely to the spouse that acquired it and it cannot be divided in the event of a divorce.

In general, a spouse who is legally separated is no longer responsible for debts taken on by the other spouse for the needs of the family.

As legally separated spouses are still married according to the law, if one spouse should die intestate (without a will) the surviving spouse is entitled to his or her share of the succession. It is strongly recommended that legally separated spouses draw up a will in which they clearly indicate their wishes and choose their heirs.

As for gifts included in a marriage contract, they will continue to be valid unless the court decides otherwise. The same is true for a spouse who is named as beneficiary in a life insurance or other policy: separation from bed and board does not affect these rights. If you have named your spouse as a beneficiary in your life insurance, that is how it will stay, unless the court decides to allow the change.

Finally, if you wish to remarry or enter a civil union after a separation from bed and board, you must first apply to the court for a divorce.

There are many reasons why spouses choose separation instead of divorce. Here are a couple of examples:

• The spouses wish to deal with all the elements of their break-up as quickly as possible, but they are unable to prove that one of the grounds that would allow them to divorce under the Divorce Act exists in their case (these grounds include living apart for over a year, adultery, or cruelty). To learn more about the grounds for divorce, you can consult the Infosheet on the subject.
  
• It is against the couple’s religion to get divorced.
  
• The spouses are not ready to permanently break the bond of marriage.
  
• The spouses wish to continue to benefit from certain financial advantages that come with marriage, like medical insurance coverage or eventual survivor benefits.

Before choosing between separation and divorce, you can consult a lawyer who can explain more about the advantages and disadvantages that apply to your own situation.

One spouse or both spouses together may file an application for a separation from bed and board.

Where only one spouse files the application, there must be proof that the desire to live together is seriously compromised. This will be the case if:

• you and your spouse are no longer living together when the application is filed;
  
• your spouse seriously breached one of the marriage obligations (your wife or husband was unfaithful, for example);
  
• the overall situation makes living together intolerable.

When the spouses apply jointly for a separation bed and board, they must file a draft agreement regarding all the consequences of their separation, such as child custody, support payments, and use of the family residence. Doing so releases the spouses from proving one of the three grounds listed above. The court will ensure that the agreement reflects the true consent of each spouse, and sufficiently protects both their interests and those of the children. If so, the court will ratify the agreement.

As we saw in the last question, the separation judgment can be obtained by a joint application by both spouses or by the application of a single spouse.

You can ask a lawyer to prepare the legal procedures and documentation, and to represent you in court. Each spouse has the right to be represented by their own lawyer. If you and your spouse agree on all the consequences of the separation, you may choose to be represented by the same lawyer and file a joint application for a separation from bed and board.

You and your spouse may also draw up a joint application for a separation from bed and board basing yourselves on the Joint Application for Divorce on Draft Agreement, a brochure produced by the ministère de la Justice du Québec. For free access to this brochure, you can visit a courthouse or you can consult the ministère de la Justice du Québec website, where you can download the forms directly.

To learn more about the different steps in a separation, you can also consult our Infosheet, The steps involved in a divorce or separation.

You can ask the court to refuse to grant the separation, but in reality the court will have a hard time refusing a legal separation if it looks like one of you does not want to continue living together.

You may, however, contest the claims concerning the consequences of a separation from bed and board, such as child custody, support payments, and the division of property. The judge will then settle these matters.

A separation from bed and board is ended simply by moving back in together. If you live together again for more than 90 days, you will be presumed to have reconciled.

You will be in the same situation as if there was no separation judgment, except for the following:

• your matrimonial regime will still be separation as to property, but you can choose another regime by signing a new marriage contract;
  
• the date that you started living together again will replace the date of your marriage for the purposes of applying the rules on family patrimony. Since the division of the patrimony was probably already done for the property acquired between the date of the marriage and the date of the separation judgment, this won’t be repeated if there is a new separation, a divorce, or if one of the spouses dies later on.