Two spouses may wish to remain married but not to cohabit, because their desire to live together has been gravely undermined. In this case, one of the spouses, or the two spouses together, may apply to the court for a legal separation, technically known as a separation from bed and board.
This option is not available to spouses in a civil union.
Difference between a legal separation and a divorce
Unlike divorce, a legal separation does not break the bonds of marriage. The spouses still owe each other respect, fidelity, succour and assistance and may also remain bound by some additional clauses in their marriage contract.
Applying for a legal separation
If the spouses have agreed on their separation (draft agreement), the draft agreement is submitted to the court, with some adaptations.
If one of the spouses does not wish to separate, or if the couple fails to reach an agreement, the court will grant a legal separation on one of the grounds provided by law:
the spouses are living apart at the time of the application;
one of the spouses has seriously failed to perform an obligation resulting form the marriage;
an accumulation of facts makes living together hardly tolerable.
As a result, when the spouses are already living apart, the abandoned spouse may invoke that fact to obtain a legal separation.
Obtaining a court judgment
Spouses who wish to obtain a judgment of legal separation must apply to the Superior Court in the judicial district where the spouses have their joint residence or, if the couple no longer live together, in the district in which one of the spouses lives.
If the two spouses agree on the terms of their separation, they may file a joint application for legal separation with the court.
When granting a legal separation and if children are involved, the judge rules on their custody, maintenance and education, in the best interests of the children and in keeping with their rights.
If possible, the judge takes into account any agreement reached by the spouses.
It is important to note that:
a legal separation does not cancel gifts made to the spouses in consideration of their marriage;
gifts made between living persons (inter vivos) or in the event of death, as set out in the marriage contract, may be annulled, amended or maintained by the judge.
End of legal separation
A legal separation ends when :
the spouses voluntarily start living together again, or