Not legally separated--could this be a problem on PR application

[johanness]

She is legally separated from her husband for more than 2 years. She's on a work permit in Canada, he's in Korea.
She's about to apply for her PR, and she does not know if she has to select "legally separated" or "married" in the new IMM0008 Generic.

He has no intention to join her, and she has no intention to include him in the application. They will be going through divorce, but she tells me he's not too co-operative about the whole PR process she'll go through.

Question:
1. If he's not co-operative about the process (signing letters, declaration, etc.), will this be a major obstacle in her PR application?
2. Should she tick "legally separated" or "married" in the form? There's really no paperwork to prove her "legal separation".

Please help. Thank you in advance.

 

[Rob_TO]

Perhaps this will help a bit: http://www.cic.gc.ca/english/resources/manuals/op/op02-eng.pdf

5.38. What happens if the common-law partner (principal applicant) is married to another
person?

Persons who are married to third parties may be considered common-law partners provided their
marriage has broken down and they have lived separate and apart from the spouse for long
enough to establish a common-law relationship – at least one year. In this case they must have
cohabited in a conjugal relationship with the common-law partner for at least one year.
Cohabitation with a common-law partner cannot be considered to have started until a physical
separation from the spouse has occurred. A common-law relationship cannot be legally
established if one or both parties continue their marital relationships.

Officers must be satisfied that a principal applicant is separated from and no longer cohabits with
a legal spouse. This evidence may be in the form of a signed formal declaration that the marriage
has ended and that the person has entered into a common-law relationship. An officer may
require that the person produce other written evidence of a formal separation or of a breakdown of
the marriage. Acceptable documents include a separation agreement, a court order in respect of
custody of children identifying the fact of the marriage breakdown, documents removing the
legally married spouse(s) from insurance policies or will as beneficiaries (a “change of beneficiary”
form).

In the above circumstances, the legal spouse of the principal applicant need not be examined and
will not be considered a member of the family class if the applicant later attempts to sponsor this
spouse. [See R117(9)(d)]. Notes in CAIPS should indicate that the applicant was aware of the
consequences of non-examination.


So since as you say there is no paper trail and no official divorce, technically she must be still married. There is no "legal" separation, unless in Korea there is some law that states a separation is legal after so much time is spent separated after the relationship has broken down. I think Korean law here in this respect will dictate if you put "married" or "legally separated" on the form.

Apparently it is ok to be married on paper to someone else and apply via common-law family category, as per the info above. But its probably good to hear from others who have actually gone through this process, to see what you really need to include in the application and how theirs went.