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If your marriage breaks down, you can choose either a divorce or a legal separation: there is a difference.

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Family law

You have been married for many years and are facing a decision, because your marriage is breaking down.

In Quebec, there are two options available for you at the breakdown of a marriage:

  1. Separation from bed and board; or
  2. Divorce.

However, although these two options exist, most people are unsure of the different consequences, and their rights and obligations, resulting from either of these legal procedures.

Article 493 of the Civil Code of Quebec provides for the possibility of seeking a legal separation by proving that the will of the parties to live together is gravely undermined.

A judgment of separation from bed and board is a procedure that does not break the bond of marriage. In fact, when a judgment of separation from bed and board is rendered, it frees the spouses from the obligation of living together. However, certain other obligations of the marriage remain, such as the obligation of spousal support and fidelity. Regarding the obligation of fidelity, if one does not respect this obligation it can give the other party the possibility of asking for a divorce on the grounds of infidelity, however, there are no financial implications to not respecting this obligation.    

A judgement of separation from bed and board will also provide for the separation of the assets accumulated during the marriage, in virtue of article 508 of the Civil Code of Quebec.

As well, at the time of your death, if you die without leaving a will, the spouse from whom you separated from bed and board will be considered the spouse for the partition of your estate.

Furthermore, a judgment of separation from bed and board does not revoke the gifts and donations made in a marriage contract.

 

Divorce is the only procedure that breaks the bond of marriage and that allows the parties to remarry if they so desire.  As well, it releases a spouse from any future financial responsibility with regard to the other spouse.

In both procedures, either separation from bed and board or divorce, the following subjects must be decided:

-       Custody of the children;

-       Child support and/or spousal support; and

-       Partition of the family patrimony.

 

A divorce judgment will also allow the possibility of waiving future alimentary support between spouses.

The choice of beginning procedures in separation from bed and board or in divorce is important and therefore, it is always prudent to discuss with your legal advisor.

 

Gianina Fuschini, Attorney-at-Law

Alepin Gauthier Avocats inc.

If your marriage breaks down, you can choose either a divorce or a legal separation:  there is a difference.
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