In the course of a separation or contemplated separation, you may have questions about legal separation. We’re here to help.
While many questions can be answered with the help of the guides, sample letters and forms in our legal toolkit, an independent jurist affiliated with PSP Legal will always be happy to help you by answering any questions you may have.
Of course, if you prefer to have an experienced practitioner take charge of your situation and intervene directly and quickly on your behalf, you can also request that one of the independent jurists affiliated with PSP Legal represent you by clicking here.erienced practitioner take charge of your situation and intervene directly and quickly on your behalf, you can also request that one of the independent jurists affiliated with PSP Legal represent you by clicking here
What is separation from bed and board?
Separation from bed and board, also known as “legal separation”, is a separation regime available only to spouses. It does not apply to civil union spouses or de facto spouses. Separation from bed and board releases the spouses from their obligation to live together. An application for separation from bed and board must be filed with the Superior Court for a decision to be rendered. Otherwise, in the absence of a judgment of separation from bed and board, spouses living separately will be in de facto separation. Separation from bed and board is a situation in which the spouses have been judicially dispensed from living together, whereas de facto separation is simply the cessation of living together, without any legal consequences.
Separation from bed and board may be requested by only one of the spouses, or jointly without any agreement. In such cases, the reasons for the separation must be disclosed. Separation from bed and board may also be requested jointly by both spouses, accompanied by a draft agreement (i.e. an amicable settlement). In such a case, it is not necessary for the spouses to disclose the reasons for their wish to obtain a judgment of legal separation. However, it should be noted that under article 494 (3) of the Civil Code of Quebec, the spouses may not make a joint application on the grounds that one of them has seriously breached an obligation arising from the marriage.
Separation from bed and board and divorce
Separation from bed and board is not a divorce. However, some of the issues to be settled in a divorce will also have to be dealt with in an application for legal separation: child custody, alimony, compensatory allowance and division of property. There are several reasons why spouses may choose legal separation rather than divorce, such as when they have no grounds for divorce, or when divorce is contrary to their religious beliefs.
The main differences between divorce and legal separation are as follows:
- Separation from bed and board does not terminate the marriage;
- The spouses cannot remarry under legal separation;
- The surviving spouse is the heir of his or her spouse if there is no will in the case of legal separation;
- Separation from bed and board executes donations provided for in the marriage contract, unless a court orders otherwise.
Causes of legal separation
When legal separation is initiated by individual application or by joint application without a draft agreement, it must state the causes of the separation. In fact, the following three causes are most often invoked to obtain de facto separation.
1- Set of facts rendering continued cohabitation intolerable
It is not a question of proving fault on the part of one of the spouses, but rather of proving facts that demonstrate that living together is difficult to tolerate. For example, a spouse’s refusal to contribute to the upkeep of the children or the household could be considered as making life together difficult to tolerate.
2- De facto separation
When the cause invoked is de facto separation at the time of application, it is not necessary to reveal the cause. All that’s required is proof that the spouses are living apart. As a general rule, they will have to show that they live in separate residences and that they now lead separate lives. Unlike divorce, the law does not require a minimum duration of de facto separation for an application for legal separation.
3- Serious breach of a marriage obligation
When one of the spouses fails to fulfill an obligation arising from the marriage as stipulated in the Civil Code of Québec, the other spouse has grounds to apply for separation from bed and board. This may involve a breach of the duty of respect, fidelity, aid and assistance, as set out in article 392, paragraph 2 of the Civil Code of Quebec.
In the event of legal separation, gifts provided for in the marriage contract will not be annulled. However, if a spouse wishes to cancel them, he or she may file a request to this effect with the application for legal separation. The court may decide to maintain, cancel or modify them.
Termination of legal separation
Legal separation may be terminated for two reasons: reconciliation or dissolution of the marriage. If the spouses start living together again, the legal separation will come to an end. Moreover, if a divorce is granted, the separation from bed and board will come to an end, giving way to the effects of the divorce. Finally, it should be noted that it is not necessary to obtain a judgment of legal separation before filing for divorce. These are two independent recourses.
How we can help
Our legal toolkit includes a variety of online resources and links to templates and guides to help you better understand your obligations.
However, should the Legal Toolkit prove insufficient in your situation, you can obtain additional assistance by speaking with one of PSP Legal’s affiliated jurists:
Of course, if you prefer to have an experienced practitioner handle your situation, you can always request that one of the independent jurists affiliated with PSP Legal intervene on your behalf by clicking here. He or she will then be able to intervene directly and rapidly on your behalf by:
- Preparing, negotiating and drafting applications, procedures or any other legal documents related to your situation;
- Assisting and advising you on your legal rights and obligations;
- Representing you before the courts when legal action is taken;
- Guiding you through the choices available to you, leading to a fair and satisfactory solution.
PSP Legal, because you deserve expert advice!
Subscribe to our newsletter