Separation occurs when one spouse decides that a relationship has ended and there is no reasonable possibility of reconciling. Spouses do not have to agree that the relationship is over for a separation to occur. It is not necessary to go to court or file a document to become “legally” separated. It is not even necessary that spouses begin living in separate locations to be considered to be living separate and apart, although one spouse moving out of a matrimonial home will usually establish that a separation has most certainly occurred. Once a separation has taken place, the couple, either by themselves or with the assistance of their lawyers, typically start the process of dividing their property; calculating the amount of support to be paid; and sorting out child-related issues including custody and access.
For married couples, determining the date of separation is important. The value of each spouse’s property at the date of separation is needed to determine whether one spouse owes the other spouse any money in the property division. The date of separation is also important as a divorce judgment is normally granted after the couple have been separated for one full year.
When common law spouses separate they are faced with many of the same decisions as married couples. They need to decide about custody and access of their children and what is the appropriate amount of child and spousal support to be paid. The law concerning the division of property is not the same for common law couples as it is for married couples however, and separating common law couples do not need to obtain a divorce.
If violence has occurred in the relationship it may be necessary to seek a court Order to force one spouse to leave the home or to request the immediate intervention of the police for charges to be laid against a spouse being accused of assault. The accusation of assault against a spouse is a very serious matter and the laying of charges by police against a spouse will normally result in that spouse being forcibly removed from the family home and not being allowed to return.
As soon as you have made a decision to separate we highly recommend that you speak with a family law lawyer to make sure that you know your rights and obligations in a legal separation.
A divorce means that a marriage has been legally ended by a court Order. A divorce can only be obtained through the courts and not through any Alternatives to Court, such as Collaborative Law. You must be divorced from your spouse before you can marry again. To obtain a divorce in Canada, typically you must be separated from your spouse for one year but there are exceptions in cases of adultery or physical or mental cruelty. Even when all other issues have been resolved in a separation agreement or another court Order, it takes time to obtain a divorce Judgment – usually about four to six months.
Before applying in court for a divorce, it is important that all the issues relating to your children have been resolved. There must be either a written separation agreement or a court Order setting out the provisions agreed to or ordered by the court for child support, custody and access before a court will grant a divorce Judgment. Negotiating a separation agreement using Collaborative Family Law or one of the Alternatives to Court will simplify your divorce.
We would be happy to discuss your situation with you and provide you with the direction and advice you need to ensure that you, your children, your finances and your long-term goals are protected.